On August 3rd, the FCC issued its THIRD REPORT AND ORDER and DECLARATORY RULING in the matter of “Accelerating Wireline and Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment.” The REPORT AND ORDER and DECLARTORY RULING address a number of areas, but among the most dramatic is the “One Touch Make Ready” (OTMR) process. As acknowledged in the FCC’s description of the matter at hand, the FCC’s objective was to accelerate broadband deployment. The question that I’d like to explore is to what extent OTMR is likely to achieve that goal.
WHAT THE REPORT AND ORDER and RULING SAYS
In order to consider their impact, we need to examine what the REPORT AND ORDER and DECLARTORY RULING say. Here’s a brief summary of the contents:
- Define OTMR Process, Responsibilities, Applicability, and Timeline
- Allow New Attachers to Elect to use the OTMR Process
- Modify Timeline and Requirements for Non-OTMR Permitting and Make Ready
- Define Rules for “Self-help” to address Non-OTMR Timeline Divergence
- Clarify Rules for Overlash Attachments (No Pre-Approval, May Require Pre-Notification)
- Move Toward Common Pricing for All Wireline Attachments
Before getting to a more thorough examination of that content, I think it’s relevant to consider the background of the FCC’s actions and the recent history of related market activity.
In March of 2010, the FCC released “Connecting America: The National Broadband Plan”. Chapter 6 of the plan included infrastructure recommendations such as establishing uniform and lower pole attachment rental rates; lowering make-ready costs through modification of construction standards; establishing a comprehensive timeline for every step in the infrastructure-access process; and improving the accessibility of information regarding the location and availability of poles, ducts, conduits and rights-of-way.
Also in 2010, Google announced plans to deploy high-speed internet services to homes in select metro areas. This initiative, usually referred to as “Google Fiber”, was introduced in Kansas City and its suburbs. The next cities to see Google Fiber were Provo, UT and Austin, TX. At the peak of its enthusiasm for the venture in 2014, Google announced plans to build in 34 cities. By 2016, having deployed in a total of six metro areas, Alphabet (Google’s parent company) announced that it was “pausing” future deployments. Among the reasons for the Google Fiber “pause” were disputes and litigation involving One Touch Make Ready ordinances that were passed in support of Google Fiber deployment in Louisville, KY and Nashville, TN. Despite its rocky rollout and the associated legal challenges, Google Fiber had brought OTMR to the attention of cities and regulators.
In January 2017, the FCC announced the formation of the Broadband Deployment Advisory Committee (BDAC). The purpose of the BDAC was to provide advice and recommendations to the FCC on how to accelerate the deployment of high-speed Internet access. In January of this year, the Competitive Access to Broadband Infrastructure Working Group of the BDAC released its report which included a One Touch Make Ready process.
In March of this year, the FCC issued a Notice of Proposed Rulemaking (NPRM) which included One Touch Make Ready. As is usually the case when the FCC issues an NPRM, the FCC received a great many comments from interested parties of all stripes. Many of these comments affected the content of the ultimate order and ruling, and are acknowledged and referenced in the text and its footnotes.
In total, the FCC’s OTMR model is an evolution of its BDAC recommendations and a product of compromise. The FCC’s OTMR model is the culmination of an objective and an issue which was born in the FCC’s 2010 National Broadband Plan, and championed for the next several years by Google Fiber. More recently, other parties with interest in rapid 5G deployment have become OTMR advocates. The bottom line is that the OTMR issue hasn’t gone away and is now codified in an FCC ruling.
ONE TOUCH MAKE READY – WHAT DOES IT MEAN?
Since it hasn’t gone away, we should probably understand what’s included in the FCC’s OTMR definition. Here are some of the high points:
- New Attacher’s Choice – Before beginning the attachment permitting process, a new attacher selects whether to use an OTMR or traditional (Non-OTMR) process.
- Survey – If the new attacher elects to use the OTMR process, the new attacher is responsible for completing the necessary pole surveys. The survey result must include a determination of the make ready requirements for each pole. Specifically, for each pole, the survey must determine whether the pole requires a.) No Make Ready; b.) Simple Make Ready; or c.) Complex Make Ready. We’ll look at the definitions of Simple vs. Complex Make Ready a little later, but what’s important to understand at this point is that any pole that requires Complex Make Ready isn’t eligible to continue via the OTMR process. There are other details of the Survey such as that the pole owner can either accept or reject the survey findings, but can only reject for valid reasons which are identified in the rejection.
- Make Ready – Just as the new attacher completed the survey, within the OTMR process, the new attacher completes Simple Make Ready work. This is work which would, under a non-OTMR process, be undertaken by existing attachers. Simple Make Ready is limited to work within the “Communications Space” of the pole and by some other criteria which, again, we’ll consider later.
- Notifications – It’s worth noting that while the new attacher is responsible for work which would have otherwise been undertaken by pole owners and other attachers, those parties aren’t completely boxed out under OTMR. In accordance with the OTMR process, the new attacher must provide at least three business days advance notice of an upcoming pole survey to the pole owner and all existing attachers. Similarly, the new attacher must provide at least 15 days advance notice to the pole owner and any existing attachers before commencing with make ready work. Representatives of the pole owner and any existing attachers are permitted to be present for the survey and/or the make ready work. Finally, within 15 days of completing the make ready work, the new attacher must notify the pole owner and any existing attachers of the work’s completion.
- Inspections – Following notification of the completion of OTMR work, the pole owner and any existing attachers are permitted 90 days to inspect the work. In the event of a problem, the pole owner or existing attacher may either complete any remedial work and reasonably bill the new attacher, or require the new attacher to make the correction with 14 days.
- Timeline – Within the discussion of Notifications and Inspections above, we’ve covered many of the timeline durations which are built into the OTMR process. Here are some others:
- Previously, and in non-OTMR permits, the pole owner had 45 days to complete its own survey and an additional 14 days to estimate the make ready cost.
- Under OTMR, the new attacher is responsible for the survey and the make ready work. The pole owner is allowed 10 days to determine the completeness of the application and survey, and 15 days to evaluate whether to grant the application.
- Separation of OTMR and Non-OTMR Permit Applications – If a permit application involves a combination of Simple and Complex Make Ready work, the new attacher may either elect to have the entire application processed under the non-OTMR process, or to split the Simple from the Complex and have two separate applications processed, one under OTMR, and one under the more traditional Non-OTMR process.
- Self Help Options (applicable to Non-OTMR process) – This isn’t really part of the OTMR process, but it’s a ground-breaking ruling which affects Non-OTMR make ready. While OTMR restricts the new attacher from undertaking any make ready in the power space on the pole, the FCC’s ruling provides for a new attacher to undertake make ready work in the communication space or power space in the event that the pole owner and/or another attacher fails to complete the work within the prescribed Non-OTMR timeline.
In total, OTMR places much greater responsibility on the new attacher, and lessens the physical and administrative requirement on pole owners and existing attachers. This movement of responsibility was a deliberate objective of the FCC’s OTMR ruling, which they acknowledged and identified as being in the interest of aligning responsibilities with the party which had the greatest incentive to complete the work.
BENEFITS AND OPPORTUNITIES
OTMR may provide some benefits and opportunities relative to accelerating broadband deployment. The FCC’s ruling includes a shortened timeline for Non-OTMR work, as well as an OTMR process that could potentially be completed according to a timeline which is dramatically shorter than typical historic processes. Additionally, there’s certainly inherent efficiency in having a single crew accomplish the work that two or more crews would undertake in a non-OTMR process. Finally, the FCC’s rulings relative to self-help in non-OTMR situations could result in faster completion of Non-OTMR make ready work.
At this point though, I think I’d call all of those things “opportunities.” It’ll be a while before we see any tangible benefits, and in the next section, we’re going to consider some of the reasons that that’s the case.
LIMITATIONS of REPORT AND ORDER and RULING
If you’ve read the FCC’s REPORT AND ORDER and RULING, your first instinct may have been to think “this changes everything.” It probably doesn’t though, because while the FCC has certain statutory authority to regulate pole attachments, that authority isn’t limitless.
- FCC Authority: Self-regulated States – The FCC controls attachments and regulations in 30 states, but the other 20 states and the District of Columbia have each implemented their own regulations and appointed a state-based regulatory body. It’s true that many self-regulated states adopt FCC rules, but it’s not a given that they’ll adopt the FCC’s OTMR process without modification, and until these state regulators take some action, the FCC doesn’t have much to say about OTMR in those states.
- FCC Authority: Cooperatives and Municipalities – The FCC’s authority to regulate pole attachments has some additional limitations. Most notably, the FCC’s authority to regulate pole attachments does not extend to poles owned by Electric Cooperatives or Municipalities.
- Existing Pole Attachment Agreements – Perhaps more important than the FCC’s statutory authority limitations, are the existing contractual obligations of pole owners and attachers. Pole owners and attachers have existing Pole Attachment Agreements. These legally-binding contracts typically set forth procedures for permitting and make ready as well as other terms and conditions of the pole owner/attacher relationship. Nearly all of these existing agreements obligate the parties to abide by procedural requirements which are completely inconsistent with the FCC’s OTMR process.
Given those limitations of the FCC’s authority, OTMR won’t be standard operating procedure for most pole owners or attachers anytime soon.
COMPLICATIONS of OTMR
In addition to the FCC’s jurisdictional limitations, OTMR also faces some other complications.
Simple vs. Complex Make Ready – The applicability of OTMR is specifically limited within the REPORT AND ORDER and RULING. This fundamental limitation is that OTMR is only applicable for Simple, not Complex, Make Ready. The following make ready work categories are by definition Complex:
- Work in the Power Space
- Work requiring Communication Cable Splicing
- Work associated with Wireless Attachments
- Pole Replacements
Further, permit applications cannot combine OTMR and Non-OTMR processes. If an attacher wishes to attach to 10 poles, 2 of which involve Complex Make Ready, the attacher may either submit one Non-OTMR application involving 10 poles, or submit one OTMR application involving 8 poles and one Non-OTMR application involving 2 poles. In this case, utilizing OTMR for some, but not all, of the poles required to construct a meaningful network segment may provide very little total timeline benefit to the attacher.
Human and Institutional Tendencies – In addition to the jurisdictional, legal, contractual, and technical limitations and complications which affect OTMR, there’s the basic fact that humans don’t naturally gravitate toward change. Large institutions such as utilities and communications companies also tend toward the use of standard processes and procedures, and typically adopt the use of new processes only through very deliberate, methodical measures. For those reasons, and especially because the use of OTMR will require that both the attacher and the pole owner are ready to make that fundamental change in the way that they work together, the basic tendency for business as usual may rule the day.
At the beginning of this article, I posed a question:
To what extent is OTMR likely to accelerate broadband deployment?
After all of that consideration, here is where I landed:
Overall, a little, but probably not that much.
The reasons that I ended up there are laid out pretty well in my descriptions of limitations and complications. The reason that even in light of those limitations and complications, OTMR will have some success is that a minority of highly-motivated attachers will pursue the opportunity to use the OTMR process, and more importantly, a minority of pole owners will welcome the reduced administrative burden that they will enjoy through use of the OTMR process. In locations where both of those conditions exist, OTMR will sometimes result in accelerated broadband deployment. OTMR’s overall impact will likely be modest, but perhaps a modest acceleration is all that the FCC ever really thought that they might achieve.