Some Notable Changes Made to the "One Touch Make-Ready" Rules and Declaratory Ruling Prohibiting State and Local Moratoria on Wireline and Wireless Deployment

Note: This advisory has been updated to reflect that the ILEC pole attachment rate parity is subject to OMB approval.

Late Friday the FCC released the text of its Third Report and Order and Declaratory Ruling ("Final Order") in the wireline and wireless infrastructure dockets. While the Final Order retained much of the substance of the Draft Order, including one touch make-ready (“OTMR”), accelerated schedules and self-help remedies for other make-ready work, codification of overlashing processes, and prohibitions on state and local telecommunications deployment moratoria, it also made substantive changes, largely in response to vigorous advocacy on the part of all stakeholders in ex partes responding to the draft order.

Our advisory analyzing the Draft Order is available here. Notable changes in both the OTMR Rules and Declaratory Ruling include:

OTMR Process:

• Extended to ILEC pole owners the right to object to the simple/complex determination on poles that the utility owns – previously only "electric utilities" could object.
• Clarified that as soon as the utility or the new attacher determines that simple make-ready is complex, the work must proceed under the non-OTMR rules.
• Clarified that where jobs are bifurcated between OTMR and regular/complex make-ready, separate applications must be filed.
• Clarified that the term "wireless activities" which are excluded from definition of simple make-ready would allow a wireless attacher’s work on its wireline backhaul facilities to be done as OTMR unless "reasonably likely to cause a service outage or facility damage."
• Denied request to exclude wireless activity in the communications space from definition of complex make-ready.

Self-Help:

• Extended the time period for pole owners and existing attachers to perform post-makeready inspections to 90 days (from 30).
• Clarified that new attachers are liable (in addition to being responsible) to existing attachers for damage to facilities and non-compliance.

Pre-Existing Non-Compliance:

• Clarified/added to Rule 1.1411(c)(2): 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.
• Codified in the Rules the statement from the Final Order that a utility may not charge a new attacher to correct pre-existing non-compliance.

General Make-Ready:

• Shortened utility response time on applications where the utility relies on new attacher’s pre-construction survey to 15 days (was 45 days).
• Returned timeframe for make-ready in power supply space to 2011 standard – 90 days from notification, 135 for larger orders (i.e., more than 300 or .5 percent but no greater than 3000 or 5 percent).
• Imposed obligation on new attacher to immediately report damage to pole owners/existing attachers equipment/outages and immediately repair upon instruction to do so by impacted entities - but also added an obligation on pole owners/existing attachers to document such damage/outages.
• Clarified that self-help is not available for pole replacements.
• Denied pole owner requests to open a further rulemaking to examine self-help make-ready in the power supply space.
• Clarified that utilities must compile but are not expected to prepare third-party make-ready estimates and must provide new attachers contact information for third-party attachers.
• Clarified in the Rules that post-construction inspection is for purpose of identifying code violations as well as damage to facilities.
• Clarified at ACA’s request that utilities must provide documentation in final make-ready invoice that is sufficient to determine the basis of all final make-ready charges, including material, labor and other related costs.
• Extended contractor insurance/bond requirement to cover liability for work performed on third party attachers' facilities.
• Clarified in response to ACA request that a utility must have a reasonable basis for vetoing a contractor.
• Added that existing attachers and utilities may file a petition (not a complaint) which would 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. Existing attachers and utilities may also file informal complaints regarding any alleged OTMR rules violations.

Overlashing:

• Clarified in response to requests from wireless entities that prior approval of utility pole owners is not required for third-party overlashing.
• Extended prohibitions on a utility’s refusal of access relating to pre-existing non-compliance to overlashing – pole owner may not prohibit overlashing because of pre-existing violations or require overlasher to fix violations it did not cause.
• Clarified that pole owner may not charge overlashers for inspections/loading studies of facilities intended to be overlashed, may not require attachers to include equipment specifications in overlashing notice, and requires any pole owner action to stop overlashing to be within the 15 day advance notice period and documented. Overlashers may modify or explain why a modification is not necessary. Pole owner may not charge a fee to review a proposed overlash.
• Added a post overlashing notice within 15 days of completion giving the pole owner 90 days to inspect and 14 additional days to notify of any problems. Provided that the violation is documented in writing, the pole owner has option of curing the violation and billing the attacher or requiring the attacher to correct in 14 days.
• Rejected pole owner request to allow imposition of a "reasonable penalty" (e.g. unauthorized attachment penalties) for overlashing without providing advance notice, and indicated informal complaint process provides adequate remedy for violations.

Section 253 Prohibition on State and Local Moratoria:

• Clarified broad interpretation of the services that a state or local government must not prohibit or effectively prohibit under Section 253 to include new services or significant improvements to existing services by an incumbent provider. Notably, the Commission holds that Section 253 protects “any covered service a provider wishes to provide, incorporating the abilities and performance characteristics it wishes to employ, including to provide existing services more robustly, or at a higher level of quality. . . .”

The Final Order also corrected the numbering of impacted rules and included an implementation schedule for the revised rules pursuant to which the pole attachment-related portions of the Third Report and Order and the rule amendments adopted therein become effective, which is 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 containing modified information collection requirements. The remainder of the Third Report and Order (primarily the provisions related to storm restoration) will be effective 30 days after publication in the Federal Register, and the Declaratory Ruling preempting state and local moratoria under Section 253 is immediately effective.

Update: On August 13, 2020, in an 82-page opinion, a panel of the 9th Circuit upheld 2-1 the challenged aspects of all three of the FCC's Small Cell, Local Moratoria and OTMR orders in all but one respect – the court vacated elements of the Small Cell Order that sought to standardize local government interpretations of 5G node aesthetics, and remanded that aspect to the FCC. Otherwise, the court deferred to the FCC's interpretation of the Communications Act. The dissent was confined to disagreeing with whether the FCC record supported a prohibition on municipalities charging fees in excess of costs (as opposed to exorbitant fees). Parties can seek rehearing by the panel, or the full court en banc, within 45 days, seek certiorari in 90 days of the decision or 90 days after any rehearing petitions are resolved.

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