CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Sat, 20 Apr 2024 11:53:14 -0400 60 hourly 1 FCC Plans to Finalize Internet Reform, 5G Fund, and TV White Spaces at October Open Meeting Thu, 22 Oct 2020 15:49:03 -0400 The FCC announced the agenda for its last Open Meeting before the upcoming 2020 general election, scheduled for October 27, 2020. The FCC first plans to respond to the remand from the U.S. Court of Appeals for the D.C. Circuit on its Restoring Internet Freedom Order. The Commission will address three issues sent back to the agency for further consideration and largely reiterate its original conclusions regarding the impact of its reforms on public safety, pole attachments, and the Lifeline program. The Commission also plans to finalize its proposed 5G Fund with a two-phase reverse auction to target support for the deployment of 5G networks in rural areas, establishing a ten-year support term and a $9 billion overall budget. The October meeting will also consider allowing unlicensed white space devices to operate on broadcast television channels, as well as streamlining the state and local approval processes for wireless tower modifications. Lastly, the FCC plans to eliminate certain unbundling and resale requirements for incumbent local exchange carriers.

Unlike most monthly Commission meetings, none of the items on the October agenda initiate new proceedings or propose new rules. Instead, the items focus on implementation of a number of policies prioritized under Chairman Pai. FCC regulatory activity will likely slow in the aftermath of the election. As a result, the October agenda may represent the FCC’s final push for any major reforms in the near-term. However, on October 15, Chairman Pai did announce his intention to move forward with a rulemaking to interpret the meaning of Section 230 of the Communications Decency Act. You will find more details on the significant October meeting items after the break:

Restoring Internet Freedom Order Remand: The draft Order on Remand would respond to the remand from the D.C. Circuit in Mozilla Corp v. FCC, which upheld a majority of the FCC’s decisions on broadband Internet access service regulation and classification in the 2017 Restoring Internet Freedom Order, but remanded three issues back to the agency for further consideration. The FCC would address each issue and find that its initial conclusions in the 2017 order promote public safety communications, facilitate broadband infrastructure deployment through pole attachment rights, and allow the Commission to continue to provide Lifeline support conditioned on providing broadband internet access service. The agency would find there is no basis for departing from these original conclusions and that any negative effects on these sectors resulting from its classification of broadband Internet access service in the 2017 order would be limited or otherwise outweighed by the benefits of the “light-touch” regulatory framework for broadband.

Establishing a 5G Fund for Rural America: The draft Report and Order would adopt the 5G Fund using a two-phase reverse auction targeting support for deploying 5G networks in areas without an unsubsidized provider of either 4G LTE or 5G mobile broadband. Proposed in an April 2020 Notice of Proposed Rulemaking (“NPRM”), the draft Order would adopt a 10-year term of support and an overall budget of $9 billion for the 5G Fund. Phase I of the auction would make available up to $8 billion, with $680 million set aside for bidders offering to serve Tribal lands, and Phase II would make at least $1 billion available to target deployment facilitating adoption of precision agriculture technologies. The FCC would adopt its proposal to determine which areas would be eligible for 5G Fund support from data collected through the upcoming Digital Opportunity Data Collection, and would impose performance requirements on carriers continuing to receive legacy mobile high-cost support.

Unlicensed Wireless Opportunities in TV White Spaces: The draft Report and Order would adopt changes to the Part 15 unlicensed device rules, as proposed in the Commission’s February 2020 NPRM, to expand the ability of white spaces devices to deliver wireless broadband services in rural areas. The Order would increase the maximum permissible power for fixed white space devices operating on TV channels 2-35 in “less congested areas” and allow higher-power mobile operations within defined geographic areas. The FCC would also adopt rule changes to facilitate the development of narrowband Internet of Things devices and services in the TV bands.

Streamlining Approval of Wireless Infrastructure Modifications: The draft Report and Order would revise the Commission’s section 6409(a) rules to provide for streamlined state and local review of tower modifications that involve limited ground excavation or deployment beyond site boundaries. The rule revision would establish that, for towers not located in the public rights-of-way, a modification of an existing site needing ground excavation or deployment of up to 30 feet will not be disqualified from streamlined processing on that basis. The draft Order would also promote accelerated deployment of 5G and other advanced wireless services by facilitating the collocation of antennas and associated equipment on existing infrastructure, while preserving the ability of state and local governments to manage and protect local land-use interests.

Modernizing Unbundling and Resale Requirements: The draft Report and Order would eliminate and modernize unbundling and resale requirements for incumbent local exchange carriers (“LECs”). The FCC would eliminate certain unbundling requirements for specific broadband-capable loops, subject to reasonable transition periods, in more densely populated areas, but preserve unbundling requirements in less densely populated areas without sufficient evidence of competition. The draft Order would also forbear from the avoided-cost resale obligation for non-price cap carrier incumbent LECs, subject to a three-year transition period.

FCC Considering Partial Grant of Regulatory Forbearance for Incumbent Carriers Tue, 09 Apr 2019 18:37:40 -0400 Among the items being considered at the upcoming April 12, 2019 Federal Communications Commission (“FCC” or “Commission”) open meeting is possible regulatory forbearance of certain legacy regulatory and structural requirements applicable to Bell Operating Companies (“BOCs”), price cap local exchange carriers (“LECs”), and independent rate-of-return carriers (“RoR carriers”). Acting on a nearly year-old USTelecom petition, the FCC’s draft Memorandum Opinion and Order (“Order”) proposes to forbear from enforcement of three regulatory requirements: (i) that independent RoR carriers offer in-region long distance service through a separate affiliate (“structural separations”); (ii) that BOCs and price cap LECs do not discriminate in service provisioning intervals and that they file special access provisioning reports; and (iii) that BOCs provide nondiscriminatory access to poles, ducts, conduits, and rights-of-way (collectively, “pole attachments”). However, the draft Order declines to decide on USTelecom’s request for forbearance from certain network unbundling and resale requirements. The Commission’s deferral on the unbundled network elements (“UNE”)/resale issue is not surprising in light of the significant industry and consumer opposition to this aspect of USTelecom’s petition. With the exception of the few comments supporting USTelecom’s petition, the vast majority of comments were relatively silent regarding the other forbearance requests. If adopted, the draft Order will be effective upon release.

The Telecommunications Act of 1996 (the “Act”) introduced numerous regulatory provisions designed to prevent BOCs from leveraging their monopoly status to disadvantage competitor long distance providers and some requirements subsequently were applied to independent incumbent local exchange carriers. Certain provisions have automatically sunset and, over time, the FCC eliminated or forbore from enforcing many, but not all, of the requirements. USTelecom has sought forbearance from BOC obligations on several occasions including, prior to the current request, in a 2014 request that all BOCs receive forbearance from all remaining Section 272 obligations in all regions. If adopted in its current form, the draft Order would forbear from enforcing three requirements, including effectively eliminating the remaining Section 272 obligations.

First, independent RoR carriers currently are subject to structural separations requirements for their in-region long distance services. The FCC rule Section 64.1903 separate long distance affiliate requirement was designed to prevent independent RoR carriers from misallocating local and long-distance operational costs, a practice that could result in overearnings or increased rates for competitors relying on critical service inputs from the independent RoR carriers. Describing the structural separations requirement as burdensome and ineffective at preventing cost misallocation, the draft Order instead cites to regulatory and marketplace changes, and Commission enforcement mechanisms as sufficient to address cost misallocation concerns. The Commission notes the existence of “numerous accounting, cost allocation and separations requirements” that act to require separate accounting, prevent cross-subsidization of services, and prescribe cost allocation procedures. The draft Order asserts that, should these methods fail, the RoR carriers are subject to investigation and enforcement pursuant to several provisions of the Act. Finally, the draft asserts that Commission rule changes and increasing RoR carrier conversion to price cap regulation has reduced the incentive, and made it easier to identify, cost misallocation. Unlike prior Commission forbearance grants of the structural separations requirement, the draft Order does not propose special access charge imputation filing or performance metric reporting requirements on independent RoR carriers. Consistent with the Commission’s prior forbearance of the imputation condition for price cap LECs and because, as discussed below, the performance metric reporting requirements are proposed to be forborne for BOCs and price cap LECs, the Commission proposes to forbear them for RoR carriers also.

Second, the draft Order proposes to grant forbearance from the Section 272(e)(1) provisioning interval requirement and related special access performance metric reporting requirement. Although not requested by USTelecom, the Commission takes the opportunity to propose forbearance of similar provisions and reporting requirements applied to price cap LECs. Section 272(e)(1) of the Act prohibits BOCs from discriminating in the speed at which the BOC provisions telephone exchange service and exchange access to unaffiliated carriers as compared to fulfilling requests for the BOC or its own affiliates. The special access performance metric reporting was intended to assist in enforcing Section 272(e)(1)’s nondiscrimination requirement. USTelecom had sought similar forbearance in 2014 and the proposed grant marks a departure from the Commission’s 2015 order denying USTelecom’s 2014 request for forbearance from all remaining Section 272 BOC obligations (“2015 USTelecom Forbearance Order”).

Similar to the justification for the structural separations forbearance for RoR carriers, the draft Order relies on the presence of existing regulations, enforcement mechanisms, and marketplace changes as supporting the proposed forbearance. The FCC explains that Sections 201 and 202 of the Act prohibit unreasonably discriminatory behavior and Section 251(b)(1) has been interpreted as prohibiting discriminatory provisioning of services for resale. The 2015 USTelecom Forbearance Order previously asserted that Sections 201 and 202 were insufficient to protect competition. Responding to opposition references to the 2015 decision on this point, the draft Order characterizes the prior statements regarding Sections 201 and 202 as “outdated,” particularly in light of later Commission orders including the 2017 Business Data Services Order. The Commission’s Section 208 complaint process and Market Disputes Resolution process are mentioned as additional methods of preventing discriminatory provisioning. The draft Order also notes that facilities-based competition, including in the business data services market, supports elimination of the BOC and price cap LEC provisioning safeguards and renders unpersuasive commenter concerns regarding possible BOC and price cap LEC motives to discriminate. USTelecom did not seek forbearance from Sections 272(e)(2) and (4), the last remaining Section 272 provisions applicable to a BOC’s Section 272 separate affiliate. However, the draft Order suggests those provisions essentially will become irrelevant because, upon forbearance of the special access performance metric reporting requirement, there will be no reason for a BOC to continue operating a Section 272 long distance affiliate.

The draft Order’s third proposed forbearance grant would relieve BOCs of the Section 271(c)(2)(B)(iii) requirement to provide nondiscriminatory access to pole attachments in accordance with Section 224 of the Act. Like the structural separations issue, this request received little attention in proceeding comments. The FCC explains that Section 271(c)(2)(B)(iii) is typically applied as a condition for BOCs seeking to provide in-region long-distance service. Because the draft Order finds the provision to be redundant of Section 224, which remains in effect, the FCC proposes to forbear from enforcement of Section 271(c)(2)(B)(iii). The draft Order highlights that the only distinction between Section 271(c)(2)(B)(iii) and Section 224 is the former statute’s 90-day complaint period, which the Commission notes has never been used for a Section 271 pole attachment complaint. The FCC asserts there is no need to single out BOCs for “duplicative pole access regulation” in light of pole ownership competition from electric service providers and the nondiscrimination safeguards in Section 224. Commenter observations that BOCs have been using enforcement remedies to obtain pole access were considered insufficient to support retaining Section 271’s duplicative enforcement remedy.

Finally, the Commission expressly declined to rule on USTelecom’s forbearance request regarding Section 251(c) obligations applicable to UNEs and resale. This issue has garnered the most attention, including staff briefing requests from the House Commerce Committee and House Communications Subcommittee, opposition filings from many industry members, and potentially more than 8,000 letters, many individualized, from consumers. Industry members opposing UNE and resale forbearance have asserted a variety of concerns, including that the petition was procedurally deficient because it was not “complete-as-filed”, the lack of “economically viable alternatives” for certain UNEs, and USTelecom’s failure to provide granular, localized data to support assertions of market competition.

The few comments supporting USTelecom’s petition asserted the presence of facilities-based competitors and the decline in use of UNEs, particularly as consumers seek higher-speed services, and argued the Commission is not required to “undertake any particular geographic or product market analysis” when reviewing a forbearance request. In light of the significant and ardent positions on potential UNE/resale forbearance – including sustained ex parte communications, as recently as yesterday, with the Commission – it’s not surprising that the Commission has chosen to delay deciding on this issue. Rather, addressing the issue in a footnote, the FCC notes that the UNE/resale request remains pending, subject to an August 2, 2019 statutory deadline, and that the draft Order should not be “construed as prejudging” the issue. The Commission does appear to be moving on the request, however, as just last week it released a Public Notice stating that the Commission intends to incorporate into the USTelecom forbearance proceeding confidential and highly confidential information submitted in the BDS proceeding. The Public Notice notes that USTelecom “relies on the Commission’s analysis of the data submitted in the BDS proceedings for the factual basis of its forbearance request” and the Commission expects that the BDS data “will significantly enhance the Commission’s ability to analyze competitive facilities deployment.” Consequently, we expect the Commission will take up this request in a future order.

The draft Order is subject to change before being released, so be sure to check back for any updates on the final Order.

FCC Plans to Speed Broadband Deployment Through One-Touch Make-Ready Fastlane for Pole Attachments Tue, 17 Jul 2018 18:45:58 -0400 After a year of heated debate between pole owners and service providers, the FCC is poised to adopt a one-touch make-ready (“OTMR”) process for the “vast majority” of pole attachments at its meeting on August 2, 2018. Late last week, the FCC released a draft Order and Declaratory Ruling that would implement a streamlined process for service providers to bypass certain pole owner requirements in order to gain access to poles to attach new facilities. Chairman Pai has touted the new procedure as hastening broadband deployment by allowing for faster, cheaper pole attachments. The FCC expects significant growth in pole attachments as service providers install the small cells necessary to support 5G technologies.

Specifically, under the new OTMR regime, new attachers with “simple” wireline attachments (i.e., do not require relocation of existing equipment or service outages) would be allowed to perform and control most of the work to prepare a pole to hold new facilities without relying on the pole owner. The rule will apply to pole attachments governed by federal law, which applies in thirty states that do not regulate pole attachments themselves. The draft emphasizes that its new OTMR process is not a requirement and that parties are welcome to negotiate alternative solutions. The FCC also plans to codify its existing precedent that utilities cannot require an attacher to seek utility approval before “overlashing” new facilities to current attachments, but utilities can require prior notice before the attacher does such work. The FCC also plans to eliminate disparities between the pole attachment rates paid by incumbent telecommunications carriers versus cable and other telecommunications attachers. In particular, the agency intends to establish a presumption for newly-negotiated pole attachment agreements between incumbent carriers and utilities that an incumbent carrier will receive comparable pole attachment rates, terms, and conditions as a similarly-situated non-incumbent carrier or a cable television system providing telecommunications services.

The Declaratory Ruling portion of the draft item clarifies the FCC’s interpretation of Section 253(a) of the Communications Act as prohibiting a state or locality from adopting any moratoria on telecommunications infrastructure deployment. This federal preemption would apply not only to express moratoria, such as laws or regulations prohibiting deployments, but also de facto moratoria that can “effectively halt or suspend” consideration of telecommunications service permits or applications without explicitly banning them. The FCC explained that actions on the part of a state or locality that merely involve some delay do not represent preempted moratoria; instead the action would need to result in a significant or unreasonably long wait.

Rulemakings directed at accelerating broadband deployment generally have drawn bipartisan support and have been a hallmark of the Pai FCC from the beginning. The Chairman clearly sees reducing barriers to pole access for new attachments as critical to densifying networks in advance of 5G deployments. However, utilities and other pole owners likely will continue their pushback against the FCC OTMR proposals, seeking additional checks to ensure pole attachments conform to safety standards.

November 2017 FCC Meeting Recap: FCC Aims to Speed Wireless Deployment by Eliminating Historic Preservation Review When Replacing Utility Poles Tue, 21 Nov 2017 17:27:03 -0500 Highlighting the need for rapid infrastructure deployment to meet growing consumer data demands and support future 5G services, the Federal Communications Commission (“FCC”) unanimously adopted a Report and Order at its November 16, 2017, meeting to eliminate historic preservation review of replacement utility poles under certain conditions. The FCC’s limited action marks the first decision to come out of the much broader FCC rulemaking proceeding initiated earlier this year to foster wireless infrastructure investment and deployment. The item also consolidates the FCC’s historic preservation review requirements into a single rule to aid compliance.

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.
While exempting qualifying replacement poles from NHPA reveiw, the FCC added language requiring parties to immediately halt construction if they uncover any burial remains or other historic sites during the replacement, even if they uncover such sites on previously disturbed land.

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.

Louisville One-Touch Make-Ready Ordinance Survives AT&T’s Challenge in Federal District Court Fri, 25 Aug 2017 16:13:37 -0400 On August 16, 2017, the U.S. District Court for the Western District of Kentucky granted summary judgment in favor of the Louisville Metro Council to uphold the city’s recently-enacted ordinance amendments providing for “one-touch make-ready” (“OTMR”) on poles in the City’s public rights-of-way. The ordinance had been challenged by AT&T, which alleged that in enacting it, the Louisville Metro Council exceeded its authority under state and federal law. The victory is a win for providers seeking faster access to poles when facing routine and other make-ready work because it obviates the need for a number of procedural steps that many see engendering delays and thwarting new attachers’ desire to build our or augment their networks promptly to provide customer services. The decision is the first in the country to review an OTMR ordinance, although other challenges to OTMR ordinances are pending.

The Louisville OTMR ordinance provides in part that a new “Attacher may relocate or alter the attachments or facilities of any Pre-Existing Third Party User as may be necessary to accommodate [the] Attacher’s Attachment using Pole Owner approved contractors.” If the relocation is not reasonably likely to result in a customer outage, the new attacher under the ordinance does not need to provide existing attachers notice before undertaking the work. Existing attachers and pole owners have fourteen days after the work is completed to inspect the work at the new attacher’s expense. The Metro Council adopted the ordinance to minimize traffic disruptions and other encumbrances that result from pole attachment make-ready work.

In upholding the ordinance and finding that the City acted within its jurisdictional authority, the court rejected three main arguments proffered by AT&T. First, AT&T claimed that the ordinance was adopted in violation of a state statute that vests exclusive authority in the Kentucky Public Service Commission to regulate the “rates and services of utilities.” The court found that the ordinance was enacted pursuant to a carve-out in the statute which allows cities to retain police powers because, rather than regulating pole attachments, the ordinance “prescribes the ‘method or manner of encumbering or placing burdens on’ public rights-of-way” and was justified by a desire to minimize traffic burdens. The court justified its characterization of the city’s activity because “Louisville Metro has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety.”

Second, AT&T claimed that the Louisville Metro Council, by modifying existing ordinance language, violated its own procedures for amending the municipal code because it failed to “specifically repeal[]” an existing code chapter or section. The court was unpersuaded, finding that the Metro Council’s “strike-through and underscoring method” was a reasonable approach that complied with the city’s procedural requirement.

Finally, AT&T asserted that the ordinance was preempted by federal law and regulations pertaining to access to pole attachments. The court rejected this argument, observing simply that federal pole attachment requirements are not applicable in Kentucky because the state’s notice to the Federal Communications Commission that it had “reverse preempted” the federal pole attachment statute under Section 224 of the Communications Act of 1934, as amended, extended even to pole access matters that the State commission does not directly regulate.

We expect that AT&T will file an appeal with the Sixth Circuit Court of Appeals.

Client Advisory: FCC Explores How to Speed Next Generation Wireline Broadband Deployment in New Proceeding Mon, 08 May 2017 19:17:41 -0400 On April 20, 2017, the Federal Communications Commission (“Commission” or “FCC”) initiated three interrelated proceedings in new WC Docket No. 17-84 that aim to “better enable broadband providers to build, maintain, and upgrade their networks” and transition from legacy copper networks to next-generation networks and services. The docket consists of three interrelated parts: a Notice of Proposed Rulemaking (“NPRM”), Notice of Inquiry (“NOI”), and Request for Comment (“RFC”) (collectively, the “Wireline Infrastructure Proceeding”). The Commission hopes to promote “more affordable and available Internet access and other broadband services.”

The Wireline Infrastructure Proceeding complements another docket that is looking at wireless broadband infrastructure, also adopted at the FCC’s April 20 Open Meeting. Please review our blog and advisory on the wireless counterpart for details on those proceedings.

The FCC seeks comment in the NPRM on proposed regulatory measures to better facilitate deployment, maintenance, and upgrading of wireline broadband networks in three basic areas. First, the Commission seeks to

  • reform and shorten the timelines for new attachers to gain access to poles;
  • examine more extensively the use of approved third-party contractors to do make-ready work;
  • create greater transparency about make-ready charges and streamline the make-ready process;
  • consider a pole-attachment complaint shot clock for Commission decisions; and
  • facilitate the attachments of incumbent local exchange carriers to poles at rates more comparable to competitive local exchange attachers.
The examination of shorter applications timelines and make-ready charges may be seen by many competitive provider attachers as particularly welcome. Second, the Commission is taking a close look at the streamlining the copper retirement process, including potential revisions or reversals to decisions made in the previous administration. Finally, the Commission looks to revise discontinuance process under Section 214 of the Communications Act (“the Act”), focusing on applications that grandfather existing customers and reconsideration of certain actions taken by the prior FCC, and the treatment of wholesale customer subscribers.

The NOI focuses on issues of preemption of state and local laws affecting broadband deployment and copper retirement. The Commission makes a number of inquiries regarding the scope of its legal authority. The NOI also looks at state laws that govern copper retirement.

Finally, the RFC seeks input on several discrete issues concerning the discontinuance process under Section 214 of the Act beyond those raised by the NPRM, specifically of what constitutes the scope of a “service” for Section 214 purposes.

In our client advisory on the Commencement of the Wireline Infrastructure Proceeding, we discuss in depth key proposed modifications and topics on which the Commission seeks comment.

Comments are due 30 days after publication in the Federal Register and reply comments are due 60 days after publication.

New Telecom Carrier Pole Attachment Rates Will Become Effective March 4 Thu, 04 Feb 2016 21:02:18 -0500 The FCC’s modification to the telecommunications carrier pole attachment rate formula have been published in the Federal Register and are set to take effect on March 4, 2016. As we reported in December, the FCC issued an Order on Reconsideration modifying the cost allocators to bring parity between the telecommunications and cable attacher rates. The initial Federal Register publication noted an April 1 effective date, but discussions with FCC staff confirmed that March 4th should be the correct effective date and that the FCC will be issuing an erratum.

Now that the effective date is set, questions may be raised in discussions between attachers and pole owners as to the proper effect of the revised formulas on rates that will be or have already been assessed in calendar year 2016. Resolution of any such questions will turn on a variety of factors including, among others, the pertinent provisions of the parties' existing agreements.

For more information about these rule updates, please read our advisory.