FCC National Broadband Plan: Infrastructure (Reform of Pole Attachment Policies, Right-of-Way Management Improvements and Facilitating Infrastructure Construction)

March 16, 2010

On March 16, 2010, after a 13-month study, the Federal Communications Commission released to the public and Congress “Connecting America:  The National Broadband Plan,” containing its policy recommendations for achieving national goals identified by Congress in 2009 legislation, including ensuring that every American has “access to broadband capability.”

Securing access to infrastructure, including utility poles, conduits and public rights-of-way is recognized by the FCC as a difficult and time-consuming process, which the Plan hopes to reform by adopting new regulations and proposing new legislation to Congress. 

Proposed Reform in Access to Poles, Ducts and Rights-of-Way

Foremost among the  recommendations regarding Infrastructure is a proposal to establish low pole attachment rates that are as close to uniform as possible for cable television and telecommunications providers, consistent with 47 U.S.C. § 224. That statute currently imposes different criteria for calculating maximum pole attachment rates for cable TV and telecom providers, which the Plan seems to acknowledge would preclude achieving complete uniformity by regulation. Therefore, the Plan also suggests that Congress should consider legislation harmonizing the government’s access policies with respect to all poles, ducts, conduits and rights-of-way. The Plan also recommends reform of “make-ready” practices and the FCC’s process for resolving disputes. The following are key details of the Plan: 

  • Referring to the current rate structure as “arcane,” the Plan suggests that unequal rates based on whether the attaching party is a “cable” or “telecom” company distort deployment decisions. In addition to unifying the rates, the Plan recommends lowering rates whenever possible. It warns that the impact of excessive rates can be particularly acute in rural areas, where there often are more poles per mile than households, and suggests that if cost differentials (between cable and telecom providers) were reduced and the lower rates applied, the effect could be to generate new rural broadband deployment.
  • Numerous broadband providers submitted information to the Commission about inefficiencies in preparing existing utility poles for attachment of new wires, a process known as “make-ready” work. The Plan proposes streamlining of the make-ready process through new regulations, and expresses support for mandatory timeline proposals, a uniform schedule of charges for the most common categories of work, and other cost-saving measures.
  • The Plan recognizes that the FCC's current methods for resolving infrastructure access disputes are too time-consuming.  Its recommendations include establishing target completion dates to expedite resolution and awarding compensation back to the date of any denial of access by a pole, conduit or right-of-way owner.  

Access to Public Rights-of-Way

The Plan recognizes that local, state, Tribal and federal governments control access to essential rights-of-way and facilities, so a comprehensive broadband policy must involve coordination among all levels of government. Noting the wide diversity among state and local policies regarding access and payment for use of public rights-of-way, the Plan proposes a joint task force of state, local and Tribal authorities, with a mandate to:

  • investigate and catalog current state and local rights-of-way practices and fees;
  • identify the polices and fees that are consistent with the national goal of broadband deployment;
  • identify construction and maintenance practices that reduce overall capital and maintenance costs for both government and users while avoiding inefficiencies;
  • recommend guidelines for defining “competitively neutral,” “nondiscriminatory,” and “fair and reasonable,” which are important statutory terms in the federal right-of-way regulatory scheme; and
  • recommend a process to the FCC that would expedite the resolution of disputes.

The Plan proposes that the task force be directed to make its recommendations within six months of its creation. 

Maximizing Impact of Federal Resources

The Plan observes that the federal government could play an important role in lowering the costs of infrastructure deployment through its own real estate leasing and grant practices. One key recommendation is that the U.S. Department of Transportation make federal financing of highways and bridges contingent on states and localities allowing joint deployment of conduits by qualified parties. The Plan also recommends that Congress consider enacting new legislation that it calls “dig once.” The benefit of both recommendations would be to encourage joint trenching and similar practices that reduce construction costs. Although the Plan assumes that the DOT already possesses the authority to implement such requirements in the highway and bridge projects it funds, the “dig once” legislation would extend these requirements to other projects receiving federal funds, such as sewers, power transmission facilities, and the like. 

The Plan recommends the development of “master contracts” for placement of wireless towers on federal government property, reducing real estate costs and streamlining the acquisition processes for wireless broadband network providers. Another recommendation would authorize federal agencies to set fees for access to federal rights-of-way on a management and cost recovery basis. The Plan asserts that these steps could lead to a decline in the cost of access to government property, and a greatly increased number of companies utilizing that resource.

This is one of a series of reports by Bingham’s Telecom, Media, and Technology practice group focusing on specific aspects of the FCC’s National Broadband Plan. If you would like to receive our reports on other topics, or to consult with us about how the Plan and its implementing proceedings may affect your business, please contact:

Andrew D. Lipman, Partner, 202.373.6033

Catherine Wang, Partner, 202.373.6037

Or any other member of the Telecom, Media, & Technology Practice Group.

This article was originally published by Bingham McCutchen LLP.