83_FR_46991 83 FR 46812 - Accelerating Wireline and Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment

83 FR 46812 - Accelerating Wireline and Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment

FEDERAL COMMUNICATIONS COMMISSION

Federal Register Volume 83, Issue 179 (September 14, 2018)

Page Range46812-46840
FR Document2018-19547

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utilities to allow attachers to ``overlash'' existing wires, thus maximizing the usable space on the pole; eliminating outdated disparities between the pole attachment rates that incumbent carriers must pay compared to other similarly-situated cable and telecommunications attachers; and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.

Federal Register, Volume 83 Issue 179 (Friday, September 14, 2018)
[Federal Register Volume 83, Number 179 (Friday, September 14, 2018)]
[Rules and Regulations]
[Pages 46812-46840]
From the Federal Register Online  [www.thefederalregister.org]
[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, 
michael.ray@fcc.gov. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an email to PRA@fcc.gov 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

[[Page 46813]]

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

[[Page 46814]]

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



                                              46812            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

                                              FEDERAL COMMUNICATIONS                                  1.1412(a) and (b), 1.1413(b), and                     incremental improvements to our rules
                                              COMMISSION                                              1.1415(b). The Commission will publish                governing such attachments to speed the
                                                                                                      a document in the Federal Register                    existing process, promote accurate
                                              47 CFR Part 1                                           announcing the effective date for the                 billing, and reduce the likelihood of
                                              [WC Docket No. 17–84; WT Docket No. 17–                 rules requiring OMB approval.                         coordination failures that cause
                                              79, FCC 18–111]                                         FOR FURTHER INFORMATION CONTACT:                      unwarranted delay.
                                                                                                      Wireline Competition Bureau,                             2. We also adopt other improvements
                                              Accelerating Wireline and Wireless                      Competition Policy Division, Michael                  to our pole attachment rules. To provide
                                              Broadband Deployment by Removing                        Ray, at (202) 418–0357, michael.ray@                  certainty to all parties and reduce the
                                              Barriers to Infrastructure Investment                   fcc.gov. For additional information                   costs of deciphering our old decisions,
                                                                                                      concerning the Paperwork Reduction                    we codify and refine our existing
                                              AGENCY:  Federal Communications                                                                               precedent that requires utilities to allow
                                              Commission.                                             Act information collection requirements
                                                                                                      contained in this document, send an                   ‘‘overlashing,’’ which helps maximize
                                              ACTION: Final rule.                                                                                           the usable space on the pole. We clarify
                                                                                                      email to PRA@fcc.gov or contact Nicole
                                              SUMMARY:    In this document, the Federal               Ongele at (202) 418–2991.                             that new attachers are not responsible
                                              Communications Commission                               SUPPLEMENTARY INFORMATION: This is a                  for the costs of repairing preexisting
                                              (Commission) adopts a new framework                     summary of the Commission’s Third                     violations of safety or other codes or
                                              for the vast majority of pole attachments               Report and Order in WC Docket No. 17–                 utility construction standards
                                              governed by federal law by instituting a                84, WT Docket No. 17–79, FCC 18–111,                  discovered during the pole attachment
                                              ‘‘one-touch make-ready’’ regime, in                     adopted August 2, 2018 and released                   process. And we eliminate outdated
                                              which a new attacher may elect to                       August 3, 2018. The full text of this                 disparities between the pole attachment
                                              perform all simple work to prepare a                    document is available for public                      rates incumbent local exchange carriers
                                              pole for new wireline attachments in the                inspection during regular business                    (LECs) must pay compared to other
                                              communications space. This new                          hours in the FCC Reference Information                similarly-situated telecommunications
                                              framework includes safeguards to                        Center, Portals II, 445 12th Street SW,               attachers.
                                                                                                      Room CY–A257, Washington, DC 20554.                      3. Finally, in this Third Report and
                                              promote coordination among parties
                                                                                                      It is available on the Commission’s                   Order, we make clear that we will
                                              and ensures that new attachers perform
                                                                                                      website at https://docs.fcc.gov/public/               preempt, on a case-by-case basis, state
                                              the work safely and reliably. The
                                                                                                      attachments/FCC-18-111A1.pdf.                         and local laws that inhibit the
                                              Commission retains the current multi-
                                                                                                                                                            rebuilding or restoration of broadband
                                              party pole attachment process for                       Synopsis                                              infrastructure after a disaster.
                                              attachments that are complex or above
                                              the communications space of a pole, but                 I. Introduction                                       II. Background
                                              makes significant modifications to                         1. In today’s order, we take one large                4. Section 224 of the Communications
                                              speed deployment, promote accurate                      step and several smaller steps to                     Act of 1934, as amended (Act), grants us
                                              billing, expand the use of self-help for                improve and speed the process of                      broad authority to regulate attachments
                                              new attachers when attachment                           preparing poles for new attachments, or               to utility-owned and -controlled poles,
                                              deadlines are missed, and reduce the                    ‘‘make ready.’’ Make-ready generally                  ducts, conduits, and rights-of-way. The
                                              likelihood of coordination failures that                refers to the modification or                         Act authorizes us to prescribe rules to:
                                              lead to unwarranted delays. The                         replacement of a utility pole, or of the              Ensure that the rates, terms, and
                                              Commission also improves its pole                       lines or equipment on the utility pole,               conditions of pole attachments are just
                                              attachment rules by codifying and                       to accommodate additional facilities on               and reasonable; require utilities to
                                              redefining Commission precedent that                    the pole. Consistent with the                         provide nondiscriminatory access to
                                              requires utilities to allow attachers to                recommendations of the Broadband                      their poles, ducts, conduits, and rights-
                                              ‘‘overlash’’ existing wires, thus                       Deployment Advisory Committee                         of-way to telecommunications carriers
                                              maximizing the usable space on the                      (BDAC), we fundamentally shift the                    and cable television systems
                                              pole; eliminating outdated disparities                  framework for the vast majority of                    (collectively, attachers); provide
                                              between the pole attachment rates that                  attachments governed by federal law by                procedures for resolving pole
                                              incumbent carriers must pay compared                    adopting a new pole attachment process                attachment complaints; govern pole
                                              to other similarly-situated cable and                   that includes ‘‘one-touch make-ready’’                attachment rates for attachers; and
                                              telecommunications attachers; and                       (OTMR), in which the new attacher                     allocate make-ready costs among
                                              clarifying that the Commission will                     performs all make-ready work. OTMR                    attachers and utilities. The Act exempts
                                              preempt, on an expedited case-by-case                   speeds and reduces the cost of                        from our jurisdiction those pole
                                              basis, state and local laws that inhibit                broadband deployment by allowing the                  attachments in states that have elected
                                              the rebuilding or restoration of                        party with the strongest incentive—the                to regulate pole attachments themselves.
                                              broadband infrastructure after a disaster.              new attacher—to prepare the pole                      Pole attachments in thirty states are
                                              DATES: Effective October 15, 2018,                      quickly by performing all of the work                 currently governed by our rules.
                                              except for Sections III.A–E of the Third                itself, rather than spreading the work                   5. Our rules take into account the
                                              Report and Order, which will be                         across multiple parties. By some                      many purposes of utility poles and how
                                              effective on the later of February 3, 2019              estimates, OTMR alone could result in                 an individual pole is divided into
                                              or 30 days after the announcement in                    approximately 8.3 million incremental                 various ‘‘spaces’’ for specific uses.
                                              the Federal Register of OMB approval of                 premises passed with fiber and about                  Utility poles often accommodate
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                                              information collection requirements                     $12.6 billion in incremental fiber capital            equipment used to provide a variety of
                                              modified in this Third Report and                       expenditures. We exclude from OTMR                    services, including electric power,
                                              Order. OMB approval is necessary for                    new attachments that are more                         telephone, cable, wireline broadband,
                                              the information collection requirements                 complicated or above the                              and wireless. Accommodating a variety
                                              in 47 CFR 1.1411(c)(1) and (3), (d)                     ‘‘communications space’’ of a pole,                   of services on the same pole benefits the
                                              introductory text, (d)(3), (e)(3), (h)(2)               where safety and reliability risks can be             public by minimizing unnecessary and
                                              and (3), (i)(1) and (2), (j)(1) through (5),            greater, but we make significant                      costly duplication of plant for all pole


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                       46813

                                              users. Different vertical portions of the               space (135 days in the case of larger                 build on the rules that we adopt herein
                                              pole serve different functions. The                     orders as defined in 47 CFR 1.1411(g)).               in order to serve the particular needs of
                                              bottom of the pole generally is unusable                A utility may take 15 additional days                 their communities. As such, nothing
                                              for most types of attachments, although                 after the make-ready period ends to                   here should be construed as altering the
                                              providers of wireless services and                      complete make-ready itself. Our current               ability of a state to exercise reverse
                                              facilities sometimes attach equipment                   rules allow new attachers in the                      preemption of our pole attachment
                                              associated with distributed antenna                     communications space to perform make-                 rules.
                                              systems and other small wireless                        ready work themselves using a utility-
                                                                                                                                                            A. Speeding Access to Poles
                                              facilities to the portion of the pole near              approved contractor when the utility or
                                              the ground. Above that, the lower usable                existing attachers do not meet their                     11. Most fundamentally, we amend
                                              space on a pole—the ‘‘communications                    deadlines.                                            our rules to allow new attachers
                                              space’’—houses low-voltage                                 7. A number of commenters allege                   (defined as a cable television system or
                                              communications equipment, including                     that pole attachment delays and the                   telecommunications carrier requesting
                                              fiber, coaxial cable, and copper wiring.                high costs of attaching to poles have                 to attach new or upgraded facilities to
                                              The topmost portion of the pole, the                    deterred them from deploying                          a pole owned or controlled by a utility)
                                              ‘‘electric space,’’ houses high-voltage                 broadband. Commenters in particular                   with simple wireline attachments in the
                                              electrical equipment. Work in the                       point to the make-ready stage of our                  communications space to elect an
                                              electric space generally is considered                  current timeline as the largest source of             OTMR-based pole attachment process
                                              more dangerous than work in the                         high costs and delays in the pole                     that places them in control of the work
                                              communications space. Historically,                     attachment process.                                   necessary to attach their equipment, and
                                              communications equipment attachers                         8. As part of its commitment to                    we improve our existing attachment
                                              used only the communications space;                     speeding broadband deployment, the                    process for other, more complex
                                              however, mobile wireless providers                      Commission established the BDAC in                    attachments.
                                              increasingly are seeking access to areas                January 2017 to advise on how best to                    12. No matter the attachment process,
                                              above the communications space,                         remove barriers to broadband                          we encourage all parties to work
                                              including the electric space, to attach                 deployment, such as delays in new pole                cooperatively to meet deadlines,
                                              pole-top small wireless facilities.                     attachments. Earlier this year, the BDAC              perform work safely, and address any
                                                 6. When a new attacher seeks access                  recommended that the Commission take                  problems expeditiously. Utilities, new
                                              to a pole, it is necessary to evaluate                  a series of actions to promote                        attachers, and existing attachers agree
                                              whether adding the attachment will be                   competitive access to broadband                       that cooperation among the parties
                                              safe and whether there is room for it. In               infrastructure, including adopting                    works best to make the pole attachment
                                              many cases, existing attachments must                   OTMR for simple attachments in the                    process proceed smoothly and safely.
                                              be moved to make room for the new                       communications space and making
                                                                                                                                                            1. New OTMR-Based Pole Attachment
                                              attachment. In some cases, it is                        incremental improvements to the
                                                                                                      Commission’s pole attachment process                  Process
                                              necessary to install a larger pole to
                                              accommodate a new attachment. Our                       for complex and non-communications                       13. We adopt a new pole attachment
                                              current rules, adopted in 2011, prescribe               space attachments.                                    process that new attachers can elect that
                                              a multi-stage process for placing new                      9. We are also committed to using all              places them in control of the surveys,
                                              attachments on utility poles:                           the tools at our disposal to speed the                notices, and make-ready work necessary
                                                 • Application Review and Survey.                     restoration of infrastructure after                   to attach their equipment to utility
                                              The new attacher applies to the utility                 disasters. Disasters such as the 2017                 poles. With OTMR as the centerpiece of
                                              for pole access. Once the application is                hurricanes can have debilitating effects              this new pole attachment regime, new
                                              complete, the utility has 45 days in                    on communications networks, and one                   attachers will save considerable time in
                                              which to make a decision on the                         of our top priorities is assisting in the             gaining access to poles (with accelerated
                                              application and complete any surveys to                 rebuilding of network infrastructure in               deadlines for application review,
                                              determine whether and where                             the wake of such events. We have also                 surveys, and make-ready work) and will
                                              attachment is feasible and what make-                   made clear our commitment to ensuring                 save substantial costs with one party
                                              ready is required. The utility may take                 that our own federal regulations do not               (rather than multiple parties) doing the
                                              an additional 15 days for large orders.                 impede restoration efforts.                           work to prepare poles for new
                                              Our current rules allow new attachers in                                                                      attachments. A better aligning of
                                                                                                      III. Third Report and Order
                                              the communications space to perform                                                                           incentives for quicker and less
                                              surveys when the utility does not meet                     10. Based on the record in this                    expensive attachments will serve the
                                              its deadline.                                           proceeding, we amend our pole                         public interest through greater
                                                 • Estimate. The utility must provide                 attachment rules to facilitate faster,                broadband deployment and competitive
                                              an estimate of all make-ready charges                   more efficient broadband deployment.                  entry.
                                              within 14 days of receiving the results                 Further, we address state and local legal
                                                                                                      barriers to rebuilding networks after                 a. Applicability and Merits of OTMR
                                              of the survey.
                                                 • Attacher Acceptance. The new                       disasters. But, at the outset, we                     Regime
                                              attacher has 14 days or until withdrawal                emphasize that parties are welcome to                    14. We adopt the BDAC’s
                                              of the estimate by the utility, whichever               reach bargained solutions that differ                 recommendation and amend our rules
                                              is later, to approve the estimate and                   from our rules. Our rules provide                     to allow new attachers to elect OTMR
                                              provide payment.                                        processes that apply in the absence of a              for simple make-ready for wireline
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                                                 • Make-Ready. The existing attachers                 negotiated agreement, but we recognize                attachments in the communications
                                              are required to prepare the pole within                 that they cannot account for every                    space on a pole. We define simple
                                              60 days of receiving notice from the                    distinct situation and encourage parties              make-ready as the BDAC does, i.e.,
                                              utility for attachments in the                          to seek superior solutions for                        make-ready where existing attachments
                                              communications space (105 days in the                   themselves through voluntary privately-               in the communications space of a pole
                                              case of larger orders) or 90 days for                   negotiated solutions. In addition, we                 could be transferred without any
                                              attachments above the communications                    recognize that some states will seek to               reasonable expectation of a service


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                                              46814            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                        46815

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


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                                              46816            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                        46817

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


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                                              46818            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                        46819

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


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                                              46820            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                       46821

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


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                                              46822            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                       46823

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


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                                              46824            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

                                              attacher. If the utility or existing                    attachers regarding critical steps in the             attachers to select a contractor from the
                                              attachers discover damage or any code                   pole attachment process.                              utility’s list. We also require utilities to
                                              violations caused by make-ready                            84. At the request of numerous                     make available and keep an up-to-date
                                              conducted by the new attacher on                        commenters, we also take this                         a reasonably sufficient list of contractors
                                              equipment belonging to the utility or an                opportunity to reiterate that under our               it authorizes to perform complex and
                                              existing attacher, then the utility or                  existing rules, the make-ready clock                  non-communications space self-help
                                              existing attacher shall inform the new                  runs simultaneously and not                           surveys and make-ready work. We thus
                                              attacher and provide adequate                           sequentially for all existing attachers,              maintain our existing contractor
                                              documentation of the damage or code                     and the utility must immediately notify               selection requirements as to complex
                                              violations. The utility or existing                     at the same time all entities with                    self-help in the communications space
                                              attacher may either (A) complete any                    existing attachments that are affected by             and extend those requirements to self-
                                              necessary remedial work and bill the                    the proposed make-ready work. We                      help above the communications space.
                                              new attacher for the reasonable costs                   recognize that coordinating work among                   87. We treat the utility list as
                                              related to fixing the damage or code                    existing attachers may be difficult,                  mandatory for complex and above the
                                              violations, or (B) require the new                      particularly for poles with many                      communications space work for several
                                              attacher to fix the damage or code                      attachments, and existing attachers that              reasons. These types of make-ready
                                              violations at its expense within 14 days                are not the first to move may in some                 involve greater risks than simple make-
                                              following notice from the utility or                    circumstances receive limited or even                 ready, and we agree with numerous
                                              existing attacher.                                      no time for work during the make-ready                commenters that utility selection of
                                                                                                      stage. Despite these challenges, we                   eligible contractors promotes safe and
                                                 83. Just as in the OTMR context, the
                                                                                                      expect utilities, new attachers, and                  reliable work in more challenging
                                              advance notice must include the date
                                                                                                      existing attachers to work cooperatively              circumstances. Although the current
                                              and time of the work, the nature of the
                                                                                                      to ensure that pole attachment deadlines              selection process sometimes entails
                                              work, and the name of the contractor
                                                                                                      are met. If others do not meet their                  delays where utilities fail to provide a
                                              being used by the new attacher. Similar
                                                                                                      deadlines, new attachers then may                     list of approved contractors, we find
                                              to our finding with regard to the OTMR
                                                                                                      invoke the self-help remedy.                          that as to complex work and work above
                                              process, we find that the utility and
                                                                                                                                                            the communications space—which
                                              existing attachers should be responsible                c. Contractor Selection for Self-Help
                                                                                                                                                            poses heightened safety and reliability
                                              for any expenses associated with                           85. We adopt different approaches to               risks—the benefits of the current
                                              double-checking the self-help work                      new attacher contractor selection for                 approach outweigh its costs. We
                                              performed by the new attacher’s                         simple and non-simple self-help make-                 recognize that self-help above the
                                              contractors, including any post-make-                   ready. Given that simple self-help and                communications space is novel and
                                              ready inspections. As in the OTMR                       OTMR are substantially similar, we                    poses particularly heightened safety and
                                              context, we also require the new                        adopt the same approach to contractor                 reliability risks. We therefore find it
                                              attacher to provide immediate notice to                 selection for simple self-help in the                 especially important to give the utility
                                              the affected utility and existing                       communications space as for OTMR,                     control over who performs such work.
                                              attachers if the new attacher’s contractor              and we do so for the same reasons set                 In reaching this conclusion, we decline
                                              damages equipment or causes an outage                   forth above. Thus, consistent with the                to adopt the BDAC’s recommendation
                                              that is reasonably likely to interrupt the              OTMR regime:                                          that utilities need no longer provide,
                                              provision of service. Upon receiving                       • A new attacher electing self-help for            and requesting attachers need not use,
                                              notice of damaged equipment or a                        simple work in the communications                     utility-approved contractors to complete
                                              service outage, the utility or existing                 space must select a contractor from a                 complex make-ready work in the
                                              attacher can either complete any                        utility-maintained list of qualified                  communications space under the self-
                                              necessary remedial work and bill the                    contractors, where such a list is                     help remedy.
                                              new attacher for the reasonable costs                   available. The contractor must meet the                  88. Although we treat the utility list
                                              related to fixing the damage or require                 same safety and reliability criteria as               as mandatory for complex and above the
                                              the new attacher to fix the damage at its               contractors authorized to perform                     communications space make-ready, we
                                              expense immediately following notice                    OTMR work. New and existing attachers                 adopt a protective measure to prevent
                                              from the utility or existing attacher.                  may request that qualified contractors                the utility list from being a choke-point
                                              Upon notice from the existing attacher                  be added to the utility’s list and the                that prevents deployment. The record
                                              or the utility to fix damages caused by                 utility may not unreasonably withhold                 indicates that some new attachers have
                                              a contractor, the new attacher must                     its consent for such additions.                       been unable to exercise their self-help
                                              complete the repair work before it can                     • Where no utility-maintained list is              remedy because a list of utility-
                                              resume its make-ready work. Where the                   available, or no utility-approved                     approved contractors was not available.
                                              utility or the existing attacher elects to              contractor is available within a                      To alleviate this problem for complex
                                              fix the damage, the new attacher can                    reasonable time period, the new attacher              and above the communications space
                                              only continue with make-ready work if                   must select a contractor that meets the               work, we set forth in our rules—as we
                                              it does not interfere with the repair                   same safety and reliability criteria as               do in the context of OTMR and simple-
                                              work being conducted by the utility or                  contractors authorized to perform                     self-help—that new and existing
                                              existing attacher. We find that these                   OTMR work and any additional non-                     attachers may request that qualified
                                              self-help notices will promote safe,                    discriminatory, written, and publicly-                contractors be added to the utility’s list
                                              reliable work and provide the                           available criteria relating to safety and             and that the utility may not
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                                              opportunity for corrections where                       reliability that the utility specifies. The           unreasonably withhold its consent for
                                              needed, as well as allow utilities and                  utility may veto the new attacher’s                   such additions. As in the context of
                                              existing attachers to alert their                       contractor selection so long as it offers             OTMR and simple self-help, to be
                                              customers of the work. In this context,                 another available, qualified contractor.              reasonable, a utility’s decision to
                                              we also find that the notices will help                    86. For complex work and work above                withhold consent must be prompt, set
                                              to address complaints that utilities are                the communications space, we take a                   forth in writing that describes the basis
                                              not receiving consistent notices from                   different approach and require new                    for rejection, nondiscriminatory, and


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                       46825

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


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                                              46826            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

                                              noticed overlash, the noticed overlash                  clearance violations between existing                 party and provide adequate
                                              would be inconsistent with generally                    attachments and power facilities.                     documentation of the damage or code
                                              applicable engineering practices, or the                Further requiring that attachers receive              violations. The utility may either
                                              noticed overlash would compromise the                   prior approval for overlashing would                  complete any necessary remedial work
                                              pole’s safety or reliability, the utility               unnecessarily increase costs for                      and bill the overlashing party for the
                                              must provide specific documentation                     attachers and delay deployment.                       reasonable costs related to fixing the
                                              demonstrating that the overlash creates                    97. We also take this opportunity to               damage or code violations or require the
                                              a capacity, safety, reliability, or                     clarify several points related to                     overlashing party to fix the damage or
                                              engineering issue within the 15 day                     overlashing. First, if the utility elects to          code violations at its expense within 14
                                              advance notice period and the                           establish an advance notice                           days following notice from the utility.
                                              overlasher must address any identified                  requirement, the utility must provide
                                                                                                      advanced written notice to attachers or               B. New Attachers Are Not Responsible
                                              issues—either by modifying its proposal                                                                       for Preexisting Violations
                                              or by explaining why, in the                            include the requirement in its pole
                                              overlasher’s view, a modification is                    attachment agreements. We find that                      99. Consistent with the BDAC’s
                                              unnecessary—before continuing with                      providing this guidance will give clarity             recommendation, we clarify that new
                                              the overlash. Consistent with our                       to all parties as to when the utility must            attachers are not responsible for the
                                              approach to OTMR and self-help, we                      receive advance notice, thereby                       costs associated with bringing poles or
                                              adopt ACA’s position that a utility may                 reducing the likelihood of disputes.                  third-party equipment into compliance
                                              not charge a fee to the party seeking to                Utilities may require pre-notification of             with current safety and pole owner
                                              overlash for the utility’s review of the                up to 15 days, the same notice period                 construction standards to the extent
                                              proposed overlash, as such fees will                    that we adopt for OTMR attachments.                   such poles or third-party equipment
                                              increase the costs of deployment. To the                We also emphasize that utilities may not              were out of compliance prior to the new
                                              extent a utility can document that an                   use advanced notice requirements to                   attachment. This includes situations
                                              overlash would require modifications to                 impose quasi-application or quasi-pre-                where a pole has been ‘‘red tagged’’—
                                              the pole or replacement of the pole, the                approval requirements, such as                        that is, found to be non-complaint with
                                              overlasher will be held responsible for                 requiring engineering studies. Finally,               safety standards and placed on a
                                              the costs associated with ensuring that                 just as new attachers electing OTMR are               replacement schedule—so new attachers
                                              the pole can safely accommodate the                     responsible for any corrective measures               are not responsible for the cost of pole
                                                                                                      needed because of their work, in the                  replacement. Although utilities have
                                              overlash. A utility may not deny access
                                                                                                      event that damage to the pole or other                sometimes held new attachers
                                              to overlash due to a pre-existing
                                                                                                      existing attachment or safety or                      responsible for the costs of correcting
                                              violation on the pole. However, a party
                                                                                                      engineering standard violations result                preexisting violations, this practice is
                                              that chooses to overlash on a pole with
                                                                                                      from overlashing, the overlasher will be              inconsistent with our long-standing
                                              a safety violation and causes damage to
                                                                                                      responsible for any necessary repairs                 principle that a new attacher is
                                              the pole or other equipment will be held
                                                                                                      arising from such overlashing. Poorly                 responsible only for actual costs
                                              responsible for any necessary repairs.
                                                                                                      performed overlashing can create safety               incurred to accommodate its
                                                  96. We find that an approach to                     and reliability risks, and the                        attachment. The new attachment may
                                              overlashing that allows for pre-                        Commission has consistently found that                precipitate correction of the preexisting
                                              notification without requiring pre-                     overlashers must ensure that they are                 violation, but it is the violation itself
                                              approval is superior to more extreme                    complying with reasonable safety,                     that causes the costs, not the new
                                              solutions advocated by some                             reliability, and engineering practices. To            attacher. Holding the new attacher liable
                                              commenters. We are unpersuaded, for                     the extent that the pole owner wishes to              for preexisting violations unfairly
                                              example, by arguments that utility pre-                 perform an engineering analysis of its                penalizes the new attacher for problems
                                              approval for overlashing is necessary to                own either within the 15-day advance                  it did not cause, thereby deterring
                                              ensure safety. Pre-approval is not                      notice period or after completion of the              deployment, and provides incentives for
                                              currently required, and the record does                 overlash, the pole owner bears the cost               attachers to complete make-ready work
                                              not demonstrate that significant safety                 of such an analysis.                                  irresponsibly and count on later
                                              or reliability issues have arisen from the                 98. We agree with ACA that we                      attachers to fix the problem. This is true
                                              application of the current policy.                      should adopt a post-overlashing                       whether the make-ready work that
                                              Rather, the record reflects that an                     notification procedure comparable to                  corrects these preexisting violations is
                                              advance notice requirement has been                     the post-make ready notification                      simple or complex. Also, if the new
                                              sufficient to address safety and                        procedure we adopt for OTMR.                          attacher chooses to repair a pre-existing
                                              reliability concerns, as it provides                    Therefore, we require that an                         violation it may seek reimbursement
                                              utilities with the opportunity to conduct               overlashing party shall notify the                    from the party responsible for the
                                              any engineering studies or inspections                  affected utility within 15 days of                    violation, including, if applicable, the
                                              either prior to the overlash being                      completion of the overlash on a                       utility.
                                              completed or after completion. For                      particular pole. The notice shall provide                100. We also clarify that utilities may
                                              instance, after an Edison Electric                      the affected utility at least 90 days from            not deny new attachers access to the
                                              Institute member received advance                       receipt in which to inspect the overlash.             pole solely based on safety concerns
                                              notice of overlashing on 5,186 poles, its               The utility has 14 days after completion              arising from a pre-existing violation, as
                                              inspection found that 716 of those poles                of its inspection to notify the                       Lightower alleges sometimes occurs.
                                              ‘‘ ‘had preexisting violations for failure              overlashing party of any damage or any                Simply denying new attachers access
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                                              to meet NESC requirements for                           code (e.g., safety, electrical, engineering,          prevents broadband deployment and
                                              clearance between communications                        construction) violations to its                       does nothing to correct the safety issue.
                                              attachments and power facilities.’ ’’                   equipment caused by the overlash. If the              We also clarify that a utility cannot
                                              Similarly, in 2016, Oncor Electric                      utility discovers damage or code                      delay completion of make-ready while
                                              Delivery in Texas received advance                      violations caused by the overlash on                  the utility attempts to identify or collect
                                              notice of overlashing and discovered                    equipment belonging to the utility, then              from the party who should pay for
                                              13.8% of the poles had existing                         the utility shall inform the overlashing              correction of the preexisting violation.


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                       46827

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


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                                              46828            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

                                              significantly lower make-ready costs; no                find that the actions we take today to                F. Rebuilding and Repairing Broadband
                                              advance approval to make attachments;                   speed broadband deployment further                    Infrastructure After Disasters
                                              no post-attachment inspection costs;                    these statutory goals. While we rely                     111. We will not allow state and local
                                              rights-of-way often obtained by electric                solely on Section 224 for legal authority,            laws to stand in the way of post-disaster
                                              company; guaranteed space on the pole;                  our prioritization of broadband                       restoration of essential communciations
                                              preferential location on pole; no                       deployment throughout today’s Third                   networks. In the Further Notice of
                                              relocation and rearrangement costs; and                 Report and Order finds support in                     Proposed Rulemaking in this
                                              numerous additional rights such as                      Section 706(a) of the                                 proceeding, we sought comment on
                                              approving and denying pole access,                      Telecommunications Act of 1996, which                 whether there are targeted
                                              collecting attachment rents and input on                exhorts us to ‘‘encourage the                         circumstances related to disasters in
                                              where new poles are placed. If the                      deployment on a reasonable and timely                 which the Commission should use its
                                              utility can demonstrate that the                        basis of advanced telecommunications                  preemption authority. We find that
                                              incumbent LEC receives significant                      capability to all Americans’’ by                      Sections 253 and 332(c)(7) of the Act
                                              material benefits beyond basic pole                     ‘‘remov[ing] barriers to infrastructure               provide authority to preempt state or
                                              attachment or other rights given to                     investment.’’ While Section 706(a) does               local laws that prohibit or have the
                                              another telecommunications attacher,                    not provide a grant of regulatory                     effect of prohibiting the rebuilding or
                                              then we leave it to the parties to
                                                                                                      authority, we look to it as guidance from             restoration of facilities used to provide
                                              negotiate the appropriate rate or
                                                                                                      Congress on how to implement our                      telecommunications services, and we
                                              tradeoffs to account for such additional
                                                                                                      statutorily-assigned duties.                          commit to the exercise of that authority
                                              benefits.
                                                 108. If the presumption we adopt                                                                           on a case-by-case basis where needed.
                                                                                                      E. Effective Date of the Commission’s                 Sections 253 and 332(c)(7) both provide
                                              today is rebutted, the pre-2011 Pole                    Modified Pole Attachment Rules
                                              Attachment Order telecommunications                                                                           for preemption of state and local laws
                                              carrier rate is the maximum rate that the                  110. Several parties have requested                that ‘‘prohibit or have the effect of
                                              utility and incumbent LEC may                           that the Commission provide a                         prohibiting’’ the deployment of
                                              negotiate. This conclusion builds on                    transition period in which to implement               telecommunications services, and we
                                              and clarifies the Commission’s                          its revised rules governing pole                      conclude that these provisions provide
                                              determination in the 2011 Pole                          attachments. As AT&T notes, this Third                authority to preempt state or local legal
                                              Attachment Order that the pre-2011                                                                            action that effectively prohibit the
                                                                                                      Report and Order would modify ‘‘the
                                              telecommunications carrier rate should                                                                        deployment of telecommunications
                                                                                                      Commission’s existing timelines for
                                              serve ‘‘as a reference point in complaint                                                                     services in the wake of a disaster. We
                                                                                                      application review, make-ready, and
                                              proceedings’’ where a joint use                                                                               also find that our authority to interpret
                                                                                                      self-help and adopt new timelines for
                                              agreement was found to give net                                                                               or act pursuant to Sections 253 and 332
                                                                                                      pre-application surveys, OTMR, and
                                              advantages to an incumbent LEC as                                                                             is not limited to natural disasters, and
                                                                                                      post OTMR and self-help inspection and
                                              compared to other attachers. The                                                                              also extends to force majeure events
                                                                                                      repair.’’ The record indicates that in
                                              Commission ‘‘[found] it prudent to                                                                            generally, including man-made
                                                                                                      some cases, these changes will require                disasters. As the Commission has
                                              identify a specific rate to be used as a                carriers and industry members to
                                              reference point in these circumstances                                                                        previously recognized, certain federal
                                                                                                      modify the automated electronic                       regulations may impede restoration
                                              because it [would] enable better                        systems they use to track and coordinate
                                              informed pole attachment negotiations                                                                         efforts, and we are working to address
                                                                                                      pole attachment workflow and                          those too—where it is within our
                                              . . . [and] reduce the number of                        activities. Therefore, we find it
                                              disputes’’ regarding pole attachment                                                                          authority, we are committed to
                                                                                                      appropriate to provide a transitional                 addressing all legal requirements that
                                              rates. We reaffirm the conclusion that                  period. To avoid confusion and
                                              reference to this rate is appropriate                                                                         stand in the way of prompt restoration
                                                                                                      facilitate efficient compliance                       of communications infrastructure.
                                              where incumbent LECs receive net
                                                                                                      preparation, we also wish to make the                    112. We prefer to exercise our
                                              material advantages in a pole
                                                                                                      transitional period uniform for all pole              authority to address the application of
                                              attachment agreement. And because we
                                                                                                      attachment-related rules. Thus, the pole              Section 253 to preempt state and local
                                              agree with commenters that
                                                                                                      attachment-related portions of this                   requirements that inhibit network
                                              establishment of an upper bound will
                                              provide further certainty within the pole               Third Report and Order (i.e., Sections                restoration on an expedited adjudicatory
                                              attachment marketplace, and help to                     III.A–E) and the rule amendments                      case-by-case basis, in which we can take
                                              further limit pole attachment litigation,               adopted therein shall become effective                into account the particularized
                                              we make this rate a hard cap. In so                     on the latter of (1) six months after the             circumstances of the state or local law
                                              doing, we remove the potential for                      release of this item or (2) 30 days after             in question and the impact of the
                                              uncertainty caused by considering the                   the Commission publishes a notice in                  disaster, and other relevant factors,
                                              rate merely as a ‘‘reference point.’’                   the Federal Register announcing                       rather than through adoption of a rule.
                                                                                                      approval by the Office of Management                     113. As the City of New York
                                              D. Legal Authority                                      and Budget of the rules adopted herein                suggests, state and local officials may be
                                                 109. We conclude that we have ample                  containing modified information                       well positioned to respond to disasters
                                              authority under Section 224 to take the                 collection requirements. We believe that              and implement disaster response
                                              actions above to adopt a new pole                       this period will be sufficient, but no                protocol and we will be cognizant not
                                              attachment process, amend our current                   more than necessary, to allow affected                to exercise our preemption authority in
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                                              pole attachment process, clarify                        industry members to modify their                      a manner that could disrupt these
                                              responsibility for pre-existing                         systems to account for the rule                       efforts. In the wake of Hurricanes
                                              violations, and address outdated rate                   amendments adopted in this Third                      Harvey, Irma, and Maria, the
                                              disparities. Section 224 authorizes us to               Report and Order. The remainder of this               Commission worked closely with state
                                              prescribe rules ensuring that the rates,                Third Report and Order will be effective              and local partners to support restoration
                                              terms, and conditions of pole                           30 days after publication in the Federal              of communications networks in affected
                                              attachments are just and reasonable. We                 Register.                                             areas, and going forward, we reiterate


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                       46829

                                              the need for ongoing coordination and                   Rulemaking, the Commission sought                     holds overlashers responsible for
                                              cooperation between the Commission                      comment on (1) the treatment of                       ensuring that their practices and
                                              and state and local governments to                      overlashing by utilities; and (2) what                equipment do not cause safety or
                                              rebuild damaged telecommunications                      actions the Commission can take to                    engineering issues; (9) establish a
                                              infrastructure as quickly as possible. As               facilitate the rebuilding and repairing of            rebuttable presumption that, for newly-
                                              the Public Safety and Homeland                          broadband infrastructure after natural                negotiated and newly-renewed pole
                                              Security Bureau is responsible for                      disasters.                                            attachment agreements between LECs
                                              coordinating the Commission’s disaster                     117. Concurrently, the BDAC, a                     and utilities, incumbent LECs will
                                              response and recovery activities and is                 federal advisory committee chartered in               receive comparable pole attachment
                                              most closely in contact with state, local,              2017, formed five active working                      rates, terms, and conditions as similarly-
                                              and Federal public safety, disaster relief              groups, as well as an ad hoc committee                situated telecommunications carriers or
                                              and restoration agencies in such                        on rates and fees, to address the issues              cable television system providing
                                              instances, it should work with the                      raised in the Wireline Infrastructure                 telecommunications services; and (10)
                                              Wireline Competition Bureau and                         Notice. During five public meetings, the              establish that new attachers are not
                                              Wireless Telecommunications Bureau to                   BDAC adopted recommendations                          responsible for costs associated with
                                              report, and provide assistance to, the                  related to competitive access to                      bringing poles or third-party equipment
                                              Commission in its adjudication of such                  broadband infrastructure. These                       into compliance with current safety and
                                              matters.                                                recommendations informed the                          pole owner construction standards to
                                                                                                      Commission’s policy decisions on pole                 the extent that such poles or third-party
                                              IV. Final Regulatory Flexibility                        attachment reform.                                    equipment were out of compliance prior
                                              Analysis                                                   118. Pursuant to the objectives set                to the new attachment. The
                                                114. As required by the Regulatory                    forth in the Wireline Infrastructure                  modifications to our pole attachment
                                              Flexibility Act of 1980, as amended                     Notice, this Third Report and Order and               rules will facilitate deployment to and
                                              (RFA), an Initial Regulatory Flexibility                Declaratory Ruling (Order) adopts                     reduce barriers to access infrastructure
                                              Analysis (IRFA) was incorporated into                   changes to Commission rules regarding                 by reducing costs and delays typically
                                              the April 2017 Notice of Proposed                       pole attachments. The Order adopts                    associated with the pole attachment
                                              Rulemaking, Notice of Inquiry, and                      changes to the current pole attachment                process. Ultimately, these pole
                                              Request for Comment (Wireline                           rules that: (1) Allow new attachers to                attachment reforms will contribute to
                                              Infrastructure Notice) and into the                     perform all work, not reasonably likely               increased broadband deployment,
                                              November 2017 Report and Order and                      to cause a service outage or facility                 decreased costs for consumers, and
                                              Declaratory Ruling, and Further Notice                  damage, to prepare poles for new                      increased service speeds.
                                              of Proposed Rulemaking (Wireline                        wireline attachments (make-ready work)
                                              Infrastructure Order) in this wireline                  in the communications space of a pole;                B. Summary of Significant Issues Raised
                                              infrastructure proceeding. The                          (2) adopt a substantially shortened                   by Public Comments in Response to the
                                              Commission sought written public                        timeline for such application review                  IRFAs
                                              comment on the proposals in the                         and make-ready work (OTMR pole                          119. The Commission did not receive
                                              Wireline Infrastructure Notice and in                   attachment timeline); (3) require new                 comments addressing the rules and
                                              the Wireline Infrastructure Order,                      attachers to use a utility-approved                   policies proposed in the IRFAs in either
                                              including comment on the IRFAs. The                     contractor if a utility makes available a             the Wireline Infrastructure Notice or the
                                              Commission received no comments on                      list of qualified contractors authorized              Wireline Infrastructure Order.
                                              the IRFAs. Because the Commission                       to perform simple make-ready work in
                                              amends its rules in this Third Report                   the communications space; (4) create a                C. Response to Comments by the Chief
                                              and Order, the Commission has                           more efficient pole attachment timeline               Counsel for Advocacy of the SBA
                                              included this Final Regulatory                          for complex and work above the                          120. The Chief Counsel did not file
                                              Flexibility Analysis (FRFA). This                       communications space (and for new                     any comments in response to this
                                              present FRFA conforms to the RFA.                       attachers that chose the non-OTMR                     proceeding.
                                                                                                      timeline for simple work); (5) enhance
                                              A. Need for, and Objectives of, the Rules                                                                     D. Description and Estimate of the
                                                                                                      the new attacher’s existing self-help
                                                 115. In the Wireline Infrastructure                                                                        Number of Small Entities To Which the
                                                                                                      remedy for surveys and make-ready
                                              Notice, the Commission continued its                                                                          Rules Will Apply
                                                                                                      work by extending it to all attachments
                                              efforts to close the digital divide by                  (both wireless and wireline) above the                   121. The RFA directs agencies to
                                              removing barriers to broadband                          communications space of a pole; (6)                   provide a description and, where
                                              infrastructure investment. To this end,                 require new attachers to use utility-                 feasible, an estimate of the number of
                                              the Commission proposed numerous                        approved contractors when utilities and               small entities that may be affected by
                                              regulatory reforms to existing rules and                existing attachers miss their deadlines               the final rules adopted pursuant to the
                                              procedures regarding pole attachments.                  and the new attacher elects self-help to              Order. The RFA generally defines the
                                                 116. On November 16, 2017, the                       complete surveys and make-ready work                  term ‘‘small entity’’ as having the same
                                              Commission adopted the Wireline                         that is complex or that involves work                 meaning as the terms ‘‘small business,’’
                                              Infrastructure Order, which enacted                     above the communications space on a                   ‘‘small organization,’’ and ‘‘small
                                              reforms to pole attachment rules that:                  pole; (7) require utilities to provide new            governmental jurisdiction.’’ In addition,
                                              (1) Bar utility pole owners from                        attachers with detailed, itemized                     the term ‘‘small business’’ has the same
                                              charging for certain capital costs that                 estimates and final invoices for all                  meaning as the term ‘‘small-business
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                                              already have been recovered from make-                  required make-ready work; (8) codify                  concern’’ under the Small Business Act.
                                              ready fees; (2) set a 180-day shot clock                the Commission’s existing precedent                   A ‘‘small-business concern’’ is one
                                              for resolution of pole access complaints;               that prohibits a pre-approval                         which: (1) Is independently owned and
                                              and (3) grant incumbent local exchange                  requirement for overlashing, and adopt                operated; (2) is not dominant in its field
                                              carriers (LECs) reciprocal access to                    a rule that allows utilities to establish             of operation; and (3) satisfies any
                                              infrastructure controlled by other LECs.                reasonable advance notice requirements                additional criteria established by the
                                              In the Further Notice of Proposed                       of up to 15 days for overlashing and                  SBA.


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                                              46830            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                        46831

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


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                                              46832            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

                                              gas over gas distribution systems                       new attacher to attach to its facilities. A           must elect OTMR in its pole attachment
                                              operated by others; and (4)                             complete application is defined as one                application and identify in its
                                              establishments primarily engaged in                     that provides the utility with the                    application the simple make-ready work
                                              transmitting and distributing gas to final              information necessary under its                       to be performed. The Order requires a
                                              consumers.’’ The SBA has developed a                    procedures, as specified in a master                  utility that wishes to object to a simple
                                              small business size standard for this                   service agreement or in publicly-                     make-ready determination to raise such
                                              industry, which is all such firms having                released requirements at the time of                  an objection during the 15-day
                                              1,000 or fewer employees. According to                  submission of the application, to begin               application review period (or within 30
                                              Census Bureau data for 2012, there were                 to survey the affected poles. The Order               days in the case of larger orders). Any
                                              422 firms in this category that operated                further establishes that a utility has ten            such objection by the utility is final and
                                              for the entire year. Of this total, 399                 business days after receipt of a pole                 determinative, so long as it is specific
                                              firms had employment of fewer than                      attachment application to determine if                and in writing, includes all relevant
                                              1,000 employees, 23 firms had                           the application is complete and notify                evidence and information supporting its
                                              employment of 1,000 employees or                        the attacher of that decision. If the                 decision, provides a good faith
                                              more, and 37 firms were not                             utility notifies the attacher that its                explanation of how such evidence and
                                              operational. Thus, the majority of firms                application is not complete within the                information relate to a determination
                                              in this category can be considered small.               ten business-day review period, then the              that the make-ready is not simple. In
                                                 138. Water Supply and Irrigation                     utility must specify where and how the                this case, the work is deemed complex
                                              Systems. This economic census category                  application is deficient. If the utility              and must follow the existing pole
                                              ‘‘comprises establishments primarily                    provides no response within ten                       attachment timeline that is modified in
                                              engaged in operating water treatment                    business days, or if the utility rejects the          this Order. If the make-ready work
                                              plants and/or operating water supply                    application as incomplete but fails to                involves a mix of simple and complex
                                              systems. The water supply system may                    specify any deficiencies in the                       work, then the new attacher may elect
                                              include pumping stations, aqueducts,                    application, then the application is                  to bifurcate the work and must submit
                                              and/or distribution mains. The water                    deemed complete. If the utility timely                separate applications for simple and
                                              may be used for drinking, irrigation, or                notifies the attacher that its application            complex work.
                                              other uses.’’ The SBA has developed a                   is incomplete and specifies the                          143. The Order provides that the new
                                              small business size standard for this                   deficiencies, then a resubmitted                      attacher can elect to proceed with the
                                              industry, which is all such firms having                application need only supplement the                  necessary simple make-ready work by
                                              $27.5 million or less in annual receipts.               previous application by addressing the                giving 15 days prior written notice to
                                              According to Census Bureau data for                     issues identified by the utility, and the             the utility and all affected existing
                                              2012, there were 3,261 firms in this                    application will be deemed complete                   attachers. The new attacher may provide
                                              category that operated for the entire                   within five business days after its                   the required 15-day notice any time
                                              year. Of this total, 3,035 firms had                    resubmission, unless the utility                      after the utility deems its pole
                                              annual sales of less than $25 million.                  specifies which deficiencies were not                 attachment application complete. If the
                                              Thus, the majority of firms in this                     addressed. A new attacher may follow                  new attacher cannot start make-ready
                                              category can be considered small.                       the resubmission procedure as many                    work on the date specified in its 15-day
                                                                                                      times as it chooses, so long as in each               notice, then the new attacher must
                                              E. Description of Projected Reporting,
                                                                                                      case it makes a bona fide attempt to                  provide 15 days advance notice of its
                                              Recordkeeping, and Other Compliance
                                                                                                      correct the issues identified by the                  revised make-ready date. The new
                                              Requirements for Small Entities
                                                                                                      utility. A utility must respond to new                attacher’s notice must provide
                                                139. OTMR Alternative Pole                            attachers within 15 days of receiving                 representatives of the utility and
                                              Attachment Process. The Order adopts                    complete pole attachment application,                 existing attachers: (1) The date and time
                                              an OTMR pole attachment alternative to                  or within 30 days for larger requests.                of the make-ready work, (2) a
                                              the Commission’s existing pole                             141. The Order provides that under                 description of the make-ready work
                                              attachment timeline. New attachers may                  the OTMR process, it is the                           involved, (3) a reasonable opportunity
                                              perform all simple make-ready work                      responsibility of the new attacher to                 to be present when the make-ready work
                                              required to accommodate new wireline                    conduct a survey of the affected poles to             is being performed, and (4) the name of
                                              attachments in the communications                       determine the make-ready work to be                   the contractor chosen by the new
                                              space on a pole. First, any OTMR work                   performed. In performing a field                      attacher to perform the make-ready
                                              will be performed by a utility-approved                 inspection as part of any pre-                        work. Further, the new attacher must
                                              contractor, although a new attacher can                 construction survey, the new attacher                 notify the existing attacher immediately
                                              use its own qualified contractor to                     must permit representatives of the                    if the new attacher’s contractor damages
                                              perform OTMR work when the utility                      utility and any existing attachers                    another company’s or the utility’s
                                              does not provide a list of approved                     potentially affected by the proposed                  equipment or causes an outage that is
                                              contractors. Second, new attachers must                 make-ready work to be present for the                 reasonably likely to interrupt the
                                              provide advanced notice and allow                       survey, using commercially reasonable                 provision of service.
                                              representatives of existing attachers and               efforts to provide advance notice of the                 144. Finally, the Order requires the
                                              the utility a reasonable opportunity to                 date, time, and location of the survey of             new attacher to provide notice to the
                                              be present when OTMR surveys and                        not less than three (3) business days.                utility and affected existing attachers
                                              make-ready work are performed. Third,                      142. The Order requires that the new               within 15 days after OTMR make-ready
                                              new attachers must allow existing                       attacher ensures that its contractor                  work is completed on a particular pole.
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                                              attachers and the utility the ability to                determines whether the make-ready                     In its post-make-ready notice, the new
                                              inspect and request any corrective                      work identified in the survey is simple               attacher must provide the utility and
                                              measures soon after the new attacher                    or complex, subject to an electric                    existing attachers at least a 90-day
                                              performs the OTMR work.                                 utility’s right to reasonably object to the           period for the inspection of make-ready
                                                 140. The Order sets forth that the                   determination. The new attacher—if it                 work performed by the new attacher’s
                                              OTMR process begins upon utility                        wants to use the OTMR process and is                  contractors. The Order requires the
                                              receipt of a complete application by a                  eligible to do so based on the survey—                utility and the existing attachers to


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                        46833

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


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                                              46834            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                         46835

                                              costs related to fixing the damage, or (B)              accelerate broadband buildout. As                     The FRFA is contained in Section IV
                                              require the overlashing party to fix the                detailed in the Order, the Commission                 above.
                                              damage at its expense within 14 days                    rejects alternative proposals, such as                  161. Paperwork Reduction Act. The
                                              following notice from the utility.                      ‘‘right-touch, make-ready’’ and NCTA’s                Third Report and Order contains
                                                 155. The Order provides that a utility               ‘‘ASAP’’ proposal—which merely                        modified information collection
                                              may not prevent an attacher from                        modify the current framework. These                   requirements subject to the Paperwork
                                              overlashing because another attacher                    approaches diffuse responsibility among               Reduction Act of 1995 (PRA), Public
                                              has not fixed a preexisting violation or                parties that lack the new attacher’s                  Law 104–13. It will be submitted to the
                                              require an existing attacher that                       incentive to ensure that the work is                  Office of Management and Budget
                                              overlashes its existing wires on a pole                 done quickly, cost effectively, and                   (OMB) for review under Section 3507(d)
                                              to fix preexisting violations caused by                 properly. Further, these proposals fail to            of the PRA. OMB, the general public,
                                              another existing attacher. The Order sets               address the existing problems created by              and other federal agencies will be
                                              forth that new attachers are not                        sequential make-ready, such as                        invited to comment on the new or
                                              responsible for the costs associated with               numerous separate climbs and                          modified information collection
                                              bringing poles or third-party equipment                 construction stoppages in the public-                 requirements contained in this
                                              into compliance with current safety and                 rights-of-way.                                        proceeding. In addition, pursuant to the
                                              pole owner construction standards to                       158. As described in the Order,                    Small Business Paperwork Relief Act of
                                              the extent such poles or third-party                    applying targeted changes to the                      2002, Public Law 107–198, see 44 U.S.C.
                                              equipment were out of compliance prior                  existing pole attachment process, such                3506(c)(4), we seek specific comment on
                                              to the new attachment. Further, utilities               as a more efficient pole attachment                   how the Commission might further
                                              may not deny new attachers access to                    timeline, detailed and itemized                       reduce the information collection
                                              the pole solely based on safety concerns                estimates and final invoices on a per-                burden for small business concerns with
                                              arising from a pre-existing violation.                  pole basis, and an enhanced self-help                 fewer than 25 employees.
                                              They also cannot delay completion of                                                                            162. In this document, we have
                                                                                                      remedy, will increase broadband
                                              make-ready while the utility attempts to                                                                      assessed the effects of reforming our
                                                                                                      deployment by reducing the number of
                                              identify or collect from the party who                                                                        pole attachment regulations and find
                                                                                                      unreasonable delays, and encouraging
                                              should pay for correction of the                                                                              that doing so will serve the public
                                                                                                      transparency and collaboration between
                                              preexisting violation. The Order also                                                                         interest and is unlikely to directly affect
                                                                                                      all interested parties at an early stage in
                                              establishes a presumption that, for                                                                           businesses with fewer than 25
                                                                                                      the pole attachment process. The Order
                                              newly-negotiated and newly renewed                                                                            employees.
                                                                                                      also concluded that codifying the                       163. Congressional Review Act. The
                                              pole attachment agreements between
                                                                                                      Commission’s existing precedent                       Commission will send a copy of the
                                              incumbent LECs and utilities, an
                                                                                                      prohibiting a pre-approval requirement                Third Report and Order to Congress and
                                              incumbent LEC will receive comparable
                                                                                                      for overlashing, and adopting a rule                  the Government Accountability Office
                                              pole attachment rates, terms, and
                                                                                                      allowing utilities to require advance                 pursuant to the Congressional Review
                                              conditions as a similarly-situated
                                              telecommunications carrier or                           notice of overlashing will eliminate the              Act, see 5 U.S.C. 801(a)(1)(A).
                                              telecommunications attacher, unless the                 industry uncertainty that currently
                                                                                                      exists regarding overlashing, a practice              VI. Ordering Clauses
                                              utility can rebut the presumption with
                                              clear and convincing evidence that the                  that is essential to broadband                           164. Accordingly, it is ordered that,
                                              incumbent LEC receives net benefits                     deployment. In addition, by eliminating               pursuant to Sections 1–4, 201, 224, 253,
                                              under its pole attachment agreement                     outdated disparities between the pole                 303(r), and 332 of the Communications
                                              with the utility, that materially                       attachment rates that incumbent carriers              Act of 1934, as amended, 47 U.S.C. 151–
                                              advantage the incumbent LEC over other                  must pay compared to other similarly-                 154, 201, 224, 253, 303(r), and 332, and
                                              telecommunications attachers. If the                    situated cable and telecommunications                 Section 5(e) of the Administrative
                                              presumption is rebutted, the pre-2011                   attachers, the Order sought to increase               Procedure Act, 5 U.S.C. 554(e), this
                                              Pole Attachment Order                                   incumbent LEC access to infrastructure                Third Report and Order and Declaratory
                                              telecommunications carrier rate is the                  by addressing the bargaining disparity                Ruling is adopted.
                                              maximum rate that the utility and                       between utilities and incumbent LECs.                    165. It is further ordered that Part 1
                                              incumbent LEC may negotiate.                            G. Report to Congress                                 of the Commission’s rules is amended as
                                                                                                                                                            set forth below.
                                              F. Steps Taken To Minimize the                            159. The Commission will send a                        166. It is further ordered that this
                                              Significant Economic Impact on Small                    copy of the Order, including this FRFA,               Third Report and Order shall be
                                              Entities, and Significant Alternatives                  in a report to be sent to Congress                    effective 30 days after publication in the
                                              Considered                                              pursuant to the Congressional Review                  Federal Register, except for Sections
                                                 156. In this Order, the Commission                   Act. In addition, the Commission will                 III.A–E of this Third Report and Order,
                                              modifies its pole attachment rules to                   send a copy of the Order, including this              which will be effective on the latter of
                                              improve the efficiency and transparency                 FRFA, to the Chief Counsel for                        six months after release of this Third
                                              of the pole attachment process, as well                 Advocacy of the SBA. A copy of the                    Report and Order or 30 days after the
                                              as to increase access to infrastructure for             Order and FRFA (or summaries thereof)                 announcement in the Federal Register
                                              certain types of broadband providers.                   will also be published in the Federal                 of Office of Management and Budget
                                              Overall, we believe the actions in this                 Register.                                             (OMB) approval of information
                                              document will reduce burdens on the                                                                           collection requirements modified in this
                                                                                                      V. Procedural Matters
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                                              affected carriers, including any small                                                                        Third Report and Order. OMB approval
                                              entities.                                                 160. Final Regulatory Flexibility                   is necessary for the information
                                                 157. The Order also finds that                       Analysis. As required by the Regulatory               collection requirements in 47 CFR
                                              adopting the OTMR process will reduce                   Flexibility Act of 1980 (RFA), the                    1.1411(c)(1) and (3), (d) introductory
                                              delays and costs for new attachers,                     Commission has prepared a Final                       text and (d)(3), (e)(3), (h)(2) and (3),
                                              enhance competition, improve public                     Regulatory Flexibility Analysis (FRFA)                (i)(1) and (2), (j)(1) through (5), 1.1412(a)
                                              safety and reliability of networks, and                 relating to this Third Report and Order.              and (b), 1.1413(b), and 1.1415(b).


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                                              46836            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

                                                167. It is further ordered that the                      (r) The term communications space                     (i) A utility shall determine within 10
                                              Commission’s Consumer &                                 means the lower usable space on a                     business days after receipt of a new
                                              Governmental Affairs Bureau, Reference                  utility pole, which typically is reserved             attacher’s attachment application
                                              Information Center, shall send a copy of                for low-voltage communications                        whether the application is complete and
                                              this Third Report and Order to Congress                 equipment.                                            notify the attacher of that decision. If
                                              and the Government Accountability                       ■ 3. Amend § 1.1403 by revising                       the utility does not respond within 10
                                              Office pursuant to the Congressional                    paragraphs (c) introductory text and                  business days after receipt of the
                                              Review Act, see 5 U.S.C. 801(a)(1)(A).                  (c)(3) to read as follows:                            application, or if the utility rejects the
                                                                                                                                                            application as incomplete but fails to
                                              List of Subjects in 47 CFR Part 1                       § 1.1403 Duty to provide access;                      specify any reasons in its response, then
                                                Administrative practice and                           modifications; notice of removal, increase            the application is deemed complete. If
                                              procedure, Communications common                        or modification; petition for temporary stay;         the utility timely notifies the new
                                              carriers, Pole attachment complaint                     and cable operator notice.                            attacher that its attachment application
                                              procedures, Reporting and                               *      *     *     *     *                            is not complete, then it must specify all
                                              recordkeeping requirements,                                (c) A utility shall provide a cable                reasons for finding it incomplete.
                                              Telecommunications.                                     television system or                                     (ii) Any resubmitted application need
                                              Federal Communications Commission.                      telecommunications carrier no less than               only address the utility’s reasons for
                                              Marlene Dortch,                                         60 days written notice prior to:                      finding the application incomplete and
                                              Secretary.                                              *      *     *     *     *                            shall be deemed complete within 5
                                                                                                         (3) Any modification of facilities by              business days after its resubmission,
                                              Final Rules                                             the utility other than make-ready                     unless the utility specifies to the new
                                                For the reasons discussed in the                      noticed pursuant to § 1.1411(e), routine              attacher which reasons were not
                                              preamble, the Federal Communications                    maintenance, or modification in                       addressed and how the resubmitted
                                              Commission amends 47 CFR part 1 as                      response to emergencies.                              application did not sufficiently address
                                              follows:                                                *      *     *     *     *                            the reasons. The new attacher may
                                                                                                                                                            follow the resubmission procedure in
                                                                                                      ■ 4. Amend § 1.1411 by:
                                              PART 1—PRACTICE AND                                                                                           this paragraph as many times as it
                                                                                                      ■ a. Revising paragraphs (a), (c), and (d)
                                              PROCEDURE                                                                                                     chooses so long as in each case it makes
                                                                                                      introductory text and (d)(2);                         a bona fide attempt to correct the
                                              ■ 1. The authority for part 1 is revised                ■ b. Adding paragraphs (d)(3) and (4);                reasons identified by the utility, and in
                                              to read as follows:                                     ■ c. Revising paragraphs (e)(1) and (2);              each case the deadline set forth in this
                                                                                                      ■ d. Adding paragraph (e)(3);                         paragraph shall apply to the utility’s
                                                Authority: 47 U.S.C. 151, 154(i) and (j),
                                              155, 157, 160, 201, 224, 225, 227, 303, 309,            ■ e. Revising paragraphs (f), (g)(1), (g)(4)          review.
                                              310, 332, 1403, 1404, 1451, 1452, and 1455.             and (5), (h), and (i); and                               (2) Application review on the merits.
                                                                                                      ■ f. Adding paragraph (j).                            A utility shall respond to the new
                                              ■ 2. Amend § 1.1402 by adding
                                              paragraphs (o) through (r) to read as                      The revisions and additions read as                attacher either by granting access or,
                                              follows:                                                follows:                                              consistent with § 1.1403(b), denying
                                                                                                      § 1.1411    Timeline for access to utility
                                                                                                                                                            access within 45 days of receipt of a
                                              § 1.1402   Definitions.                                                                                       complete application to attach facilities
                                                                                                      poles.
                                              *      *     *     *     *                                                                                    to its utility poles (or within 60 days in
                                                 (o) The term make-ready means the                       (a) Definitions.
                                                                                                                                                            the case of larger orders as described in
                                              modification or replacement of a utility                   (1) The term ‘‘attachment’’ means any              paragraph (g) of this section). A utility
                                              pole, or of the lines or equipment on the               attachment by a cable television system               may not deny the new attacher pole
                                              utility pole, to accommodate additional                 or provider of telecommunications                     access based on a preexisting violation
                                              facilities on the utility pole.                         service to a pole owned or controlled by              not caused by any prior attachments of
                                                 (p) The term complex make-ready                      a utility.                                            the new attacher.
                                              means transfers and work within the                        (2) The term ‘‘new attacher’’ means a                 (3) Survey. (i) A utility shall complete
                                              communications space that would be                      cable television system or                            a survey of poles for which access has
                                              reasonably likely to cause a service                    telecommunications carrier requesting                 been requested within 45 days of receipt
                                              outage(s) or facility damage, including                 to attach new or upgraded facilities to               of a complete application to attach
                                              work such as splicing of any                            a pole owned or controlled by a utility.              facilities to its utility poles (or within 60
                                              communication attachment or                                (3) The term ‘‘existing attacher’’                 days in the case of larger orders as
                                              relocation of existing wireless                         means any entity with equipment on a                  described in paragraph (g) of this
                                              attachments. Any and all wireless                       utility pole.                                         section).
                                              activities, including those involving                   *      *    *     *     *                                (ii) A utility shall permit the new
                                              mobile, fixed, and point-to-point                          (c) Application review and survey—                 attacher and any existing attachers on
                                              wireless communications and wireless                    (1) Application completeness. A utility               the affected poles to be present for any
                                              internet service providers, are to be                   shall review a new attacher’s attachment              field inspection conducted as part of the
                                              considered complex.                                     application for completeness before                   utility’s survey. A utility shall use
                                                 (q) The term simple make-ready                       reviewing the application on its merits.              commercially reasonable efforts to
                                              means make-ready where existing                         A new attacher’s attachment application               provide the affected attachers with
                                              attachments in the communications                       is considered complete if it provides the             advance notice of not less than 3
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                                              space of a pole could be transferred                    utility with the information necessary                business days of any field inspection as
                                              without any reasonable expectation of a                 under its procedures, as specified in a               part of the survey and shall provide the
                                              service outage or facility damage and                   master service agreement or in                        date, time, and location of the survey,
                                              does not require splicing of any existing               requirements that are available in                    and name of the contractor performing
                                              communication attachment or                             writing publicly at the time of                       the survey.
                                              relocation of an existing wireless                      submission of the application, to begin                  (iii) Where a new attacher has
                                              attachment.                                             to survey the affected poles.                         conducted a survey pursuant to


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                         46837

                                              paragraph (j)(3) of this section, a utility                (4) A utility may not charge a new                 contact information and address where
                                              can elect to satisfy its survey obligations             attacher to bring poles, attachments, or              the utility sent the notices. The new
                                              in this paragraph by notifying affected                 third-party equipment into compliance                 attacher shall be responsible for
                                              attachers of its intent to use the survey               with current published safety,                        coordinating with existing attachers to
                                              conducted by the new attacher pursuant                  reliability, and pole owner construction              encourage their completion of make-
                                              to paragraph (j)(3) of this section and by              standards guidelines if such poles,                   ready by the dates set forth by the utility
                                              providing a copy of the survey to the                   attachments, or third-party equipment                 in paragraph (e)(1)(ii) of this section for
                                              affected attachers within the time period               were out of compliance because of work                communications space attachments or
                                              set forth in paragraph (c)(3)(i) of this                performed by a party other than the new               paragraph (e)(2)(ii) of this section for
                                              section. A utility relying on a survey                  attacher prior to the new attachment.                 attachments above the communications
                                              conducted pursuant to paragraph (j)(3)                     (e) * * *                                          space.
                                              of this section to satisfy all of its                      (1) For attachments in the                            (f) A utility shall complete its make-
                                              obligations under paragraph (c)(3)(i) of                communications space, the notice shall:               ready in the communications space by
                                              this section shall have 15 days to make                    (i) Specify where and what make-                   the same dates set for existing attachers
                                              such a notification to affected attachers               ready will be performed.                              in paragraph (e)(1)(ii) of this section or
                                              rather than a 45 day survey period.                        (ii) Set a date for completion of make-            its make-ready above the
                                                                                                      ready in the communications space that                communications space by the same
                                                 (d) Estimate. Where a new attacher’s                 is no later than 30 days after notification
                                              request for access is not denied, a utility                                                                   dates for existing attachers in paragraph
                                                                                                      is sent (or up to 75 days in the case of              (e)(2)(ii) of this section (or if the utility
                                              shall present to a new attacher a                       larger orders as described in paragraph
                                              detailed, itemized estimate, on a pole-                                                                       has asserted its 15-day right of control,
                                                                                                      (g) of this section).                                 15 days later).
                                              by-pole basis where requested, of                          (iii) State that any entity with an
                                              charges to perform all necessary make-                                                                           (g) * * *
                                                                                                      existing attachment may modify the                       (1) A utility shall apply the timeline
                                              ready within 14 days of providing the                   attachment consistent with the specified
                                              response required by paragraph (c) of                                                                         described in paragraphs (c) through (e)
                                                                                                      make-ready before the date set for                    of this section to all requests for
                                              this section, or in the case where a new                completion.
                                              attacher has performed a survey, within                                                                       attachment up to the lesser of 300 poles
                                                                                                         (iv) State that if make-ready is not               or 0.5 percent of the utility’s poles in a
                                              14 days of receipt by the utility of such               completed by the completion date set by
                                              survey. Where a pole-by-pole estimate is                                                                      state.
                                                                                                      the utility in paragraph (e)(1)(ii) in this
                                              requested and the utility incurs fixed                                                                        *      *      *     *     *
                                                                                                      section, the new attacher may complete
                                              costs that are not reasonably calculable                                                                         (4) A utility shall negotiate in good
                                                                                                      the make-ready specified pursuant to
                                              on a pole-by-pole basis, the utility                                                                          faith the timing of all requests for
                                                                                                      paragraph (e)(1)(i) in this section.
                                              present charges on a per-job basis rather                  (v) State the name, telephone number,              attachment larger than the lesser of 3000
                                              than present a pole-by-pole estimate for                and email address of a person to contact              poles or 5 percent of the utility’s poles
                                              those fixed cost charges. The utility                   for more information about the make-                  in a state.
                                              shall provide documentation that is                     ready procedure.                                         (5) A utility may treat multiple
                                              sufficient to determine the basis of all                   (2) For attachments above the                      requests from a single new attacher as
                                              estimated charges, including any                        communications space, the notice shall:               one request when the requests are filed
                                              projected material, labor, and other                       (i) Specify where and what make-                   within 30 days of one another.
                                              related costs that form the basis of its                ready will be performed.                                 (h) Deviation from the time limits
                                              estimate.                                                  (ii) Set a date for completion of make-            specified in this section. (1) A utility
                                              *      *     *     *     *                              ready that is no later than 90 days after             may deviate from the time limits
                                                                                                      notification is sent (or 135 days in the              specified in this section before offering
                                                 (2) A new attacher may accept a valid                                                                      an estimate of charges if the parties have
                                              estimate and make payment any time                      case of larger orders, as described in
                                                                                                      paragraph (g) of this section).                       no agreement specifying the rates,
                                              after receipt of an estimate, except it                                                                       terms, and conditions of attachment.
                                                                                                         (iii) State that any entity with an
                                              may not accept after the estimate is                                                                             (2) A utility may deviate from the
                                                                                                      existing attachment may modify the
                                              withdrawn.                                                                                                    time limits specified in this section
                                                                                                      attachment consistent with the specified
                                                 (3) Final invoice: After the utility                 make-ready before the date set for                    during performance of make-ready for
                                              completes make-ready, if the final cost                 completion.                                           good and sufficient cause that renders it
                                              of the work differs from the estimate, it                  (iv) State that the utility may assert its         infeasible for the utility to complete
                                              shall provide the new attacher with a                   right to 15 additional days to complete               make-ready within the time limits
                                              detailed, itemized final invoice of the                 make-ready.                                           specified in this section. A utility that
                                              actual make-ready charges incurred, on                     (v) State that if make-ready is not                so deviates shall immediately notify, in
                                              a pole-by-pole basis where requested, to                completed by the completion date set by               writing, the new attacher and affected
                                              accommodate the new attacher’s                          the utility in paragraph (e)(2)(ii) in this           existing attachers and shall identify the
                                              attachment. Where a pole-by-pole                        section (or, if the utility has asserted its          affected poles and include a detailed
                                              estimate is requested and the utility                   15-day right of control, 15 days later),              explanation of the reason for the
                                              incurs fixed costs that are not                         the new attacher may complete the                     deviation and a new completion date.
                                              reasonably calculable on a pole-by-pole                 make-ready specified pursuant to                      The utility shall deviate from the time
                                              basis, the utility may present charges on               paragraph (e)(1)(i) of this section.                  limits specified in this section for a
                                              a per-job basis rather than present a                      (vi) State the name, telephone                     period no longer than necessary to
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                                              pole-by-pole invoice for those fixed cost               number, and email address of a person                 complete make-ready on the affected
                                              charges. The utility shall provide                      to contact for more information about                 poles and shall resume make-ready
                                              documentation that is sufficient to                     the make-ready procedure.                             without discrimination when it returns
                                              determine the basis of all estimated                       (3) Once a utility provides the notices            to routine operations. A utility cannot
                                              charges, including any projected                        described in this section, it then must               delay completion of make-ready because
                                              material, labor, and other related costs                provide the new attacher with a copy of               of a preexisting violation on an affected
                                              that form the basis of its estimate.                    the notices and the existing attachers’               pole not caused by the new attacher.


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                                              46838            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

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


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                                                               Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations                                         46839

                                              may object to the designation by the                       (iii) In performing make-ready, if the             contractors it authorizes to perform
                                              new attacher’s contractor that certain                  new attacher or the utility determines                surveys and simple make-ready. If a
                                              make-ready is simple. If the utility                    that make-ready classified as simple is               utility provides such a list, then the new
                                              objects to the contractor’s determination               complex, then that specific make-ready                attacher must choose a contractor from
                                              that make-ready is simple, then it is                   must be halted and the determining                    the list to perform the work. New and
                                              deemed complex. The utility’s objection                 party must provide immediate notice to                existing attachers may request the
                                              is final and determinative so long as it                the other party of its determination and              addition to the list of any contractor that
                                              is specific and in writing, includes all                the impacted poles. The affected make-                meets the minimum qualifications in
                                              relevant evidence and information                       ready shall then be governed by                       paragraphs (c)(1) through (5) of this
                                              supporting its decision, made in good                   paragraphs (d) through (i) of this section            section and the utility may not
                                              faith, and explains how such evidence                   and the utility shall provide the notice              unreasonably withhold its consent.
                                              and information relate to a                             required by paragraph (e) of this section                (1) If the utility does not provide a list
                                              determination that the make-ready is                    as soon as reasonably practicable.                    of approved contractors for surveys or
                                              not simple.                                                (5) Post-make-ready timeline. A new                simple make-ready or no utility-
                                                 (3) Surveys. The new attacher is                     attacher shall notify the affected utility            approved contractor is available within
                                              responsible for all surveys required as                 and existing attachers within 15 days                 a reasonable time period, then the new
                                              part of the one-touch make-ready                        after completion of make-ready on a                   attacher may choose its own qualified
                                              process and shall use a contractor as                   particular pole. The notice shall provide             contractor that meets the requirements
                                              specified in § 1.1412(b).                               the affected utility and existing                     in paragraph (c) of this section. When
                                                 (i) The new attacher shall permit the                attachers at least 90 days from receipt in            choosing a contractor that is not on a
                                              utility and any existing attachers on the               which to inspect the make-ready. The                  utility-provided list, the new attacher
                                              affected poles to be present for any field              affected utility and existing attachers               must certify to the utility that its
                                              inspection conducted as part of the new                 have 14 days after completion of their                contractor meets the minimum
                                              attacher’s surveys. The new attacher                    inspection to notify the new attacher of              qualifications described in paragraph (c)
                                              shall use commercially reasonable                       any damage or code violations caused                  of this section when providing notices
                                              efforts to provide the utility and affected             by make-ready conducted by the new                    required by § 1.1411(i)(1)(ii), (i)(2)(i),
                                              existing attachers with advance notice                  attacher on their equipment. If the                   (j)(3)(i), and (j)(4).
                                              of not less than 3 business days of a                   utility or an existing attacher notifies                 (2) The utility may disqualify any
                                              field inspection as part of any survey                  the new attacher of such damage or code               contractor chosen by the new attacher
                                              and shall provide the date, time, and                   violations, then the utility or existing              that is not on a utility-provided list, but
                                              location of the surveys, and name of the                attacher shall provide adequate
                                                                                                                                                            such disqualification must be based on
                                              contractor performing the surveys.                      documentation of the damage or the
                                                                                                                                                            reasonable safety or reliability concerns
                                                                                                      code violations. The utility or existing
                                                 (ii) [Reserved].                                                                                           related to the contractor’s failure to meet
                                                                                                      attacher may either complete any
                                                 (4) Make-ready. If the new attacher’s                                                                      any of the minimum qualifications
                                                                                                      necessary remedial work and bill the
                                              attachment application is approved and                                                                        described in paragraph (c) of this
                                                                                                      new attacher for the reasonable costs
                                              if it has provided 15 days prior written                                                                      section or to meet the utility’s publicly
                                                                                                      related to fixing the damage or code
                                              notice of the make-ready to the affected                                                                      available and commercially reasonable
                                                                                                      violations or require the new attacher to
                                              utility and existing attachers, the new                                                                       safety or reliability standards. The
                                                                                                      fix the damage or code violations at its
                                              attacher may proceed with make-ready                                                                          utility must provide notice of its
                                                                                                      expense within 14 days following notice
                                              using a contractor in the manner                                                                              contractor objection within the notice
                                                                                                      from the utility or existing attacher.
                                              specified for simple make-ready in                                                                            periods provided by the new attacher in
                                                                                                      ■ 5. Amend § 1.1412 by revising
                                              § 1.1412(b).                                                                                                  § 1.1411(i)(1)(ii), (i)(2)(i), (j)(3)(i), and
                                                                                                      paragraphs (a), (b), and (c) to read as               (j)(4) and in its objection must identify
                                                 (i) The prior written notice shall
                                                                                                      follows:                                              at least one available qualified
                                              include the date and time of the make-
                                              ready, a description of the work                        § 1.1412 Contractors for surveys and                  contractor.
                                              involved, the name of the contractor                    make-ready.                                              (c) Contractor minimum qualification
                                              being used by the new attacher, and                        (a) Contractors for self-help complex              requirements. Utilities must ensure that
                                              provide the affected utility and existing               and above the communications space                    contractors on a utility-provided list,
                                              attachers a reasonable opportunity to be                make-ready. A utility shall make                      and new attachers must ensure that
                                              present for any make-ready.                             available and keep up-to-date a                       contractors they select pursuant to
                                                 (ii) The new attacher shall notify an                reasonably sufficient list of contractors             paragraph (b)(1) of this section, meet the
                                              affected utility or existing attacher                   it authorizes to perform self-help                    following minimum requirements:
                                              immediately if make-ready damages the                   surveys and make-ready that is complex                   (1) The contractor has agreed to
                                              equipment of a utility or an existing                   and self-help surveys and make-ready                  follow published safety and operational
                                              attacher or causes an outage that is                    that is above the communications space                guidelines of the utility, if available, but
                                              reasonably likely to interrupt the service              on its poles. The new attacher must use               if unavailable, the contractor shall agree
                                              of a utility or existing attacher. Upon                 a contractor from this list to perform                to follow National Electrical Safety Code
                                              receiving notice from the new attacher,                 self-help work that is complex or above               (NESC) guidelines;
                                              the utility or existing attacher may                    the communications space. New and                        (2) The contractor has acknowledged
                                              either:                                                 existing attachers may request the                    that it knows how to read and follow
                                                 (A) Complete any necessary remedial                  addition to the list of any contractor that           licensed-engineered pole designs for
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                                              work and bill the new attacher for the                  meets the minimum qualifications in                   make-ready, if required by the utility;
                                              reasonable costs related to fixing the                  paragraphs (c)(1) through (5) of this                    (3) The contractor has agreed to
                                              damage; or                                              section and the utility may not                       follow all local, state, and federal laws
                                                 (B) Require the new attacher to fix the              unreasonably withhold its consent.                    and regulations including, but not
                                              damage at its expense immediately                          (b) Contractors for simple work. A                 limited to, the rules regarding Qualified
                                              following notice from the utility or                    utility may, but is not required to, keep             and Competent Persons under the
                                              existing attacher.                                      up-to-date a reasonably sufficient list of            requirements of the Occupational and


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                                              46840            Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations

                                              Safety Health Administration (OSHA)                     exchange carriers) may be charged no                  within the 15 day advance notice period
                                              rules;                                                  higher than the rate determined in                    and the party seeking to overlash must
                                                 (4) The contractor has agreed to meet                accordance with § 1.1406(e)(2). A utility             address any identified issues before
                                              or exceed any uniformly applied and                     can rebut either or both of the two                   continuing with the overlash either by
                                              reasonable safety and reliability                       presumptions in this paragraph (b) with               modifying its proposal or by explaining
                                              thresholds set by the utility, if made                  clear and convincing evidence that the                why, in the party’s view, a modification
                                              available; and                                          incumbent local exchange carrier                      is unnecessary. A utility may not charge
                                                 (5) The contractor is adequately                     receives benefits under its pole                      a fee to the party seeking to overlash for
                                              insured or will establish an adequate                   attachment agreement with a utility that              the utility’s review of the proposed
                                              performance bond for the make-ready it                  materially advantages the incumbent                   overlash.
                                              will perform, including work it will                    local exchange carrier over other
                                                                                                                                                               (d) Overlashers’ responsibility. A
                                              perform on facilities owned by existing                 telecommunications carriers or cable
                                                                                                                                                            party that engages in overlashing is
                                              attachers.                                              television systems providing
                                                                                                                                                            responsible for its own equipment and
                                              *      *    *     *     *                               telecommunications services on the
                                                                                                                                                            shall ensure that it complies with
                                                                                                      same poles.
                                              ■ 6. Revise § 1.1413 to read as follows:                                                                      reasonable safety, reliability, and
                                                                                                      ■ 7. Add § 1.1415 to read as follows:
                                                                                                                                                            engineering practices. If damage to a
                                              § 1.1413 Complaints by incumbent local                                                                        pole or other existing attachment results
                                              exchange carriers.                                      § 1.1415    Overlashing.
                                                                                                         (a) Prior approval. A utility shall not            from overlashing or overlashing work
                                                 (a) A complaint by an incumbent local                                                                      causes safety or engineering standard
                                              exchange carrier (as defined in 47 U.S.C.               require prior approval for:
                                                                                                         (1) An existing attacher that                      violations, then the overlashing party is
                                              251(h)) or an association of incumbent                                                                        responsible at its expense for any
                                                                                                      overlashes its existing wires on a pole;
                                              local exchange carriers alleging that it                                                                      necessary repairs.
                                                                                                      or
                                              has been denied access to a pole, duct,                    (2) For third party overlashing of an
                                              conduit, or right-of-way owned or                                                                                (e) Post-overlashing review. An
                                                                                                      existing attachment that is conducted                 overlashing party shall notify the
                                              controlled by a local exchange carrier or               with the permission of an existing
                                              that a utility’s rate, term, or condition                                                                     affected utility within 15 days of
                                                                                                      attacher.                                             completion of the overlash on a
                                              for a pole attachment is not just and                      (b) Preexisting violations. A utility
                                              reasonable shall follow the same                                                                              particular pole. The notice shall provide
                                                                                                      may not prevent an attacher from                      the affected utility at least 90 days from
                                              complaint procedures specified for                      overlashing because another existing
                                              other pole attachment complaints in this                                                                      receipt in which to inspect the overlash.
                                                                                                      attacher has not fixed a preexisting                  The utility has 14 days after completion
                                              part.                                                   violation. A utility may not require an
                                                 (b) In complaint proceedings                                                                               of its inspection to notify the
                                                                                                      existing attacher that overlashes its                 overlashing party of any damage or code
                                              challenging utility pole attachment                     existing wires on a pole to fix
                                              rates, terms, and conditions for pole                                                                         violations to its equipment caused by
                                                                                                      preexisting violations caused by another              the overlash. If the utility discovers
                                              attachment contracts entered into or                    existing attacher.
                                              renewed after the effective date of this                                                                      damage or code violations caused by the
                                                                                                         (c) Advance notice. A utility may
                                              section, there is a presumption that an                                                                       overlash on equipment belonging to the
                                                                                                      require no more than 15 days’ advance
                                              incumbent local exchange carrier (or an                                                                       utility, then the utility shall inform the
                                                                                                      notice of planned overlashing. If a
                                              association of incumbent local exchange                                                                       overlashing party and provide adequate
                                                                                                      utility requires advance notice for
                                              carriers) is similarly situated to an                                                                         documentation of the damage or code
                                                                                                      overlashing, then the utility must
                                              attacher that is a telecommunications                                                                         violations. The utility may either
                                                                                                      provide existing attachers with advance
                                              carrier (as defined in 47 U.S.C.                        written notice of the notice requirement              complete any necessary remedial work
                                              251(a)(5)) or a cable television system                 or include the notice requirement in the              and bill the overlashing party for the
                                              providing telecommunications services                   attachment agreement with the existing                reasonable costs related to fixing the
                                              for purposes of obtaining comparable                    attacher. If after receiving advance                  damage or code violations or require the
                                              rates, terms, or conditions. In such                    notice, the utility determines that an                overlashing party to fix the damage or
                                              complaint proceedings challenging pole                  overlash would create a capacity, safety,             code violations at its expense within 14
                                              attachment rates, there is a presumption                reliability, or engineering issue, it must            days following notice from the utility.
                                              that incumbent local exchange carriers                  provide specific documentation of the                 [FR Doc. 2018–19547 Filed 9–13–18; 8:45 am]
                                              (or an association of incumbent local                   issue to the party seeking to overlash                BILLING CODE 6712–01–P
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Document Created: 2018-09-14 03:03:29
Document Modified: 2018-09-14 03:03:29
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective 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.
ContactWireline 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.
FR Citation83 FR 46812 
CFR AssociatedAdministrative Practice and Procedure; Communications Common Carriers; Pole Attachment Complaint Procedures; Reporting and Recordkeeping Requirements and Telecommunications

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