The CAF provides support to broadband service providers to deploy networks in rural and other high-cost service areas. In addition to meeting their deployment obligations, CAF recipients must show that they provide broadband services meeting certain performance requirements that vary by CAF program. Last year, the FCC established uniform testing procedures for CAF recipients to demonstrate that they meet the relevant performance requirements. The testing requires CAF recipients to measure the speed and latency of their broadband services to see if they meet the applicable program benchmarks. Service providers unable to meet their performance requirements lose funding on a sliding scale based on how far they miss the benchmarks. The FCC initially established a July 1, 2020 deadline for CAF recipients to report their broadband performance testing results. However, many service providers raised concerns regarding both the timing and procedures for testing. In particular, these stakeholders noted that the July 1, 2020 reporting deadline would come before many CAF recipients are required to deploy most of their networks. These service providers also took issue with the current cost and availability of testing equipment and requested more time to become familiar with the CAF broadband performance testing process.

The Order attempts to address CAF recipients’ concerns in two ways. First, the FCC will delay the start of testing reporting for many CAF recipients to better align with the deployment deadlines for the different CAF programs. For example, the FCC is in the process of authorizing funding for winning bidders at the CAF Phase II auction that closed last year. These newly-authorized service providers would have at least until 2022 to deploy 40% of their broadband networks. As a result, the FCC will delay the start of testing reporting for CAF Phase II auction winners until January 1, 2023, to ensure a sufficient sample size. Second, the FCC will create mandatory pre-testing periods for CAF recipients to see how their networks and testing equipment perform without risk of losing support for missing the applicable speed and latency program benchmarks. The pre-testing period also will provide time for the cost of testing equipment to decrease and the availability of such equipment to increase. Note that the FCC will not delay the July 1, 2020 broadband performance testing start date for recipients of CAF Phase II model-based support. CAF Phase II model-based support recipients generally are large price-cap carriers that must deploy 80% of their networks by the end of 2020 and that have prior broadband testing experience. A summary of the new pre-testing and testing start dates for the major CAF programs is below:

CAF Program	Pre-Testing Start Date	Testing Start Date
CAF Phase II (model-based)	January 1, 2020	July 1, 2020
Rural Broadband Experiments	January 1, 2021	January 1, 2022
Alternative Cost-Model I	January 1, 2021	January 1, 2022
Alternative Cost-Model II	January 1, 2022	January 1, 2023
CAF Phase II (auction)	January 1, 2022	January 1, 2023

The Order also provides more flexibility in CAF broadband performance testing by, among other things, expanding the number and types of locations that can be used as testing endpoints, clarifying that the same location can be used for both speed and latency testing, and making the speed and latency testing timeframes less rigid. These changes should help lower the compliance burdens on smaller providers.

Spectrum Frontiers Auctions: The FCC issued a draft Public Notice in its ongoing Spectrum Frontiers proceeding establishing application and bidding procedures to auction 850 MHz of spectrum in the 28 GHz band and 700 MHz of spectrum in the 24 GHz band. The spectrum would be made available for flexible wireless use to support 5G technologies. The FCC plans to start the 28 GHz band auction by mid-November 2018, with the 24 GHz band auction following soon afterward. The agency would apply its standard auction rules to each proceeding to facilitate participation in both auctions. In addition, the FCC released a draft proposed rulemaking seeking comment on service rule changes for the 39 GHz band, which along with the upper 37 GHz band, represents the largest amount of contiguous spectrum available for flexible use in the millimeter wave bands. The FCC anticipates freeing up this spectrum through an incentive auction tentatively planned for 2019. Comments will be due September 17, 2018 and replies on October 8, 2018.

One-Touch Make-Ready: A draft Order and Declaratory Ruling would allow the “vast majority” of pole attachments to follow a one-touch make-ready process, in which new attachers may elect to perform all of the work to prepare a pole to hold new facilities without relying on the pole owner. The FCC also plans to codify its existing precedent regarding the “overlashing” of new facilities to current attachments, while eliminating disparities between the pole attachment rates paid by incumbent telecommunications carriers versus cable and other telecommunications attachers. In addition, the draft would clarify that state and local moratoria on telecommunications services and facilities deployments are preempted under federal law.

$100 Million Connected Care Pilot Program: The FCC plans to adopt a Notice of Inquiry (“NOI”) seeking input on a proposed $100 million “Connected Care Pilot Program” to support telehealth services delivered to low-income Americans. The proposed program would draw money from the Universal Service Fund, potentially lowering the funds available to other programs (it notes the reduced spending on the Lifeline Program), and the FCC is looking for comments on the appropriate application procedures, supported services and equipment, support amounts, eligibility criteria, and duration for the pilot program. The NOI asks a lot of open questions, but also seeks comment on restricting the pilot program to projects that would involve new or upgraded deployments or upgrades to existing facilities and whether to only partner with facilities-based eligible telecommunications carriers (“ETCs”), which would be consistent with the agency’s proposal in late 2017 to limit the Lifeline Program to facilities-based ETCs. Comments will be due 30 days after the NOI is released and reply comments are due 60 days after release.

The National Historic Preservation Act (“NHPA”) requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including the siting of poles, including replacement poles, for communications facilities. Where undertakings are not exempt, parties must comply with detailed NHPA procedures, including consultation, information collection, and review requirements. The FCC previously exempted some pole replacements from these obligations, but it limited the exception to “towers” originally constructed for the sole or primary purpose of supporting communications antennas. By contrast, replacements for poles constructed for other purposes, such as for electric utility lines, required full NHPA review. Carriers and pole owners criticized the distinction between towers and other poles, noting that no such distinction exists for pole replacements on federal lands. However, some state historic preservation officers and Tribal authorities warned that unchecked pole construction could disturb archeological resources and other protected sites.

The new rule exempts additional pole replacements from NHPA review if they meet certain criteria:

• Not a Tower: The pole being replaced can hold utility, communications, or related transmission lines but was not originally constructed for the sole or primary purpose of supporting communications antenna.
• Proximity to Original Pole: The replacement pole must be located no more than ten feet away from the original pole. This represents a relaxation of the FCC’s original proposal, which would have required the replacement pole to be inserted in the same hole as the original pole. However, Commissioner O’Rielly explained that a replacement pole often must be constructed near the original pole while it still stands so that electric wires and other attachments can be transferred safely.
• Prohibiting New Disturbances: The replacement pole must not cause any new “ground disturbance,” although the item recognizes that most rights-of-way will have been disturbed previously by the construction of the original pole or other infrastructure.
• Restricting Extensions: The replacement pole may exceed the height of the original pole by no more than five feet or ten percent of the original pole’s height, whichever is greater.
• Preserving Aesthetics: The replacement pole must be “consistent” with the quality and appearance of the original pole. The FCC initially indicated that the replacement pole must use the same material as the original pole, but it now will allow a change in material (e.g., replacing a wooden pole with a metal pole) so long as the replacement does not result in a significant aesthetic change. The exemption also does not apply when the original pole is itself a historic property.

The FCC anticipates that the additional exemption will not affect historical properties but will spur network densification with small cell facilities to meet rising consumer demand for wireless data and support next-generation 5G services. However, the FCC also recognized that significant reforms to pole siting requirements and coordination with affected stakeholders like Tribal authorities is still necessary to accelerate deployment. As a result, it remains to be seen whether the bipartisan front shown by the FCC here will hold in the face of future, more controversial, wireless infrastructure reforms to come out of the Commission’s infrastructure proceedings.

The new pole replacement exemption will take effect within 30 days of the Report and Order’s publication in the Federal Register.

These rules apply to BIA review and approval of access to ROW for electric transmission and distribution systems (including lines, poles, towers, telecommunication, protection, measurement and data acquisition equipment, other items necessary to operate and maintain the system and appurtenant facilities) as well as telecommunications, broadband, and fiber optic lines.

The most noteworthy provisions of the updated rules provide a clear process and timeline for applying for and receiving a ROW. Under the old rules, applicants never knew when to expect a response or what happened to the application once filed. Now, BIA will notify applicants once it receives an application of its completeness and any missing components. Applicants can now expect BIA to grant or deny the ROW within 60 days of receiving a completed application. Simultaneously, BIA will notify the Tribal or landowners of its intent to grant the ROW at least 60 days prior to the grant, giving the Tribal or landowners 30 days to object to the grant of the ROW. BIA also reserves the right to use an additional 30 days to review the application and request the applicant to submit additional information within 15 days. BIA will then grant or deny the application within 30 days of notifying the applicant of needing more time. If BIA denies the application, BIA will provide a written basis for the denial as well as the process for appeal. These provisions provide much needed clarity as to the process and timeline for review, easing the burden and cost of uncertainty to companies. Further, if BIA does not take action under these new timelines, the applicant can first elevate the matter to the BIA Regional Director and then the BIA Director, an appeal process that was not available under the old rules.

Also significant is that BIA deleted the rules specific to telephone lines and communication facilities, removing the size limitations for poles, lines and receiving structures and facilities. Rather, the updated rules expand the definition of Service Lines from telephone, water, electric power, gas and other utilities to include Internet Service. BIA offers additional clarification for service providers, noting that utilities can construct a Service Line from one of the utility's existing ROWs without obtaining a new ROW if the utility serves one structure. If the utility plans to serve more than one structure, then the Service Line will require a ROW. Regardless of the number of structures serves, Service Lines require a Service Line Agreement, which both the utility and the Tribe (or land-owner) must execute and file with BIA prior to constructing Service Lines across Tribal Land or individually-owned land.

In terms of the length of the grant, BIA will defer to a Tribe's determination that the ROW terms are reasonable. For individually owned Indian land, BIA will review the ROW duration to ensure the term is reasonable given the purpose of the ROW. BIA will generally consider a maximum term of up to 50 years for all ROWs other than oil and gas.

The updated rules also include other key provisions:

• Tribes and individual Native American landowners now have more freedom to negotiate their compensation. A ROW may allow for any payment amount negotiated by the Tribe and BIA will defer to the Tribe. BIA will consider access to broadband services as in-kind compensation.
• The old rules require anyone seeking to survey the land to request written permission from BIA. The updated rule eliminates this requirement, significantly shorting the time needed to conduct the survey.
• BIA decisions to grant or deny a ROW will be in writing and BIA will grant the ROW unless the applicant fails to meet the requirements or obtain landowner consent where required, or BIA finds a compelling reason not to grant the ROW in order to protect the best interest of Indian landowners.
• ROW documents are effective on the date of approval, even if an administrative appeal is filed.

The new rules represent a huge step forward by clarifying the process and expedited timelines for obtaining ROWs on Tribal lands to deploy communications infrastructure. Should you have any questions about what these new rules mean for your business, please feel free to reach out to Jennifer Holtz at [email protected] or your usual Kelley Drye Communications Practice attorneys.