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.

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.