United States: FCC Vows Its Never Gonna Give Up On Bridging Digital Divide: Opens Rulemakings To Promote Access To Broadband Infrastructure

At the end of March, new FCC Chairman Ajit Pai branded April "Infrastructure Month." He paired this declaration with the announcement of a comprehensive agenda aimed at tackling a host of infrastructure-related challenges seen as critical to the deployment of high-speed broadband Internet access and bridging the digital divide. The FCC implemented the first steps of the Chairman's infrastructure agenda yesterday, adopting proposed rulemakings intended to decrease regulatory barriers confronted by wireline and wireless providers seeking to deploy and operate broadband networks.

Wireline. The FCC's "wireline" notice of proposed rulemaking, notice of inquiry, and request for public comment ("Wireline NPRM"), dubbed "Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment," solicits data and proposals on how best to lower costs and streamline access to wireline infrastructure, primarily focusing on access to utility poles.

The Wireline NPRM invites comment on a variety of reforms, including:

  • Speeding Access To Poles. The Wireline NPRM asks a number of questions about the FCC's current timelines for making new attachments in an effort to explore approaches to speeding access. The FCC also describes "alternative" approaches piloted by a few utilities and local governments to reduce the timeline from attachment application to facility deployment for broadband providers, sometimes called "One-Touch Make Ready" rules. The NPRM recognizes that these approaches must consider the benefits of these alternatives against paramount concerns related to safety and property rights, including pole owners' and existing attachers' Fifth Amendment protections. The FCC thus seeks comment as to the appropriate balance between encouraging faster access to pole infrastructure and the preservation of pole owner and existing attacher rights.
  • Costs Of Make-Ready. While make-ready charges and costs must be "just and reasonable" under the FCC's current rules, the NPRM invites comment as to whether this standard is met in practice, whether existing charges inhibit broadband deployment, and whether current charges enable pole owners to double-recover capital costs. The Commission also solicits alternative proposals to reduce make-ready charges.
  • Charges Imposed On Incumbent LECs. The NPRM solicits comment on a proposed rule that would presume pole owners should charge incumbent local exchange carriers and other telecommunications attachers the same pole attachment rates.
  • Expediting The Resolution of Pole Attachment Complaints. The NPRM solicits comments and proposals as to the feasibility and propriety of requiring the FCC's Enforcement Bureau to resolve pole attachment complaints within 180 days of filing.
  • Reciprocal Access To Poles. The NPRM proposes to reexamine existing interpretations of 1996 Local Competition Order to determine the rights and obligations of incumbent LECs and other telecommunications carriers that require access to infrastructure.

The Notice of Inquiry accompanying the NPRM also invites comment on where the FCC could exercise its preemption authority to prevent the enforcement of state and local laws that prohibit broadband deployment and adoption.

Wireless. The FCC's "wireless" notice of proposed rulemaking and notice of inquiry ("Wireless NPRM"), dubbed "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment," solicits input on steps the FCC should take to promote the rapid deployment of the wireless infrastructure needed to support next-generation technologies such as 5G and the Internet of Things and the rapid deployment of advanced services to all Americans.

The Wireless NPRM solicits comments on:

  • Regulatory Barriers. The Wireless NPRM asks how local, state, and FCC rules and processes impair the speed and increase the cost of infrastructure deployment, and invites proposals for improving these processes. Proposals on the table include time limits on local review of wireless siting applications, with rules providing that applications be "deemed granted" if not acted upon within a reasonable time. The NPRM also tees up the use and impact of state and local moratoria on wireless infrastructure deployments, and proposes to take additional actions to ban or preempt their use.
  • Historic Preservation (NHPA) and Environmental (NEPA) Reviews. The Wireless NPRM also seeks comment on the impact of NHPA and NEPA processes on wireless facilities, including measures designed to decrease costs and delays associated with Tribal Nations' and State Historic Preservation Officers' participation in this process. Specifically, the NPRM seeks proposals and comments on how these processes could be modified to streamline the deployment of the thousands of small antennae needed for 5G and other advanced wireless services.

Comments from interested parties in both dockets are due 30 days after publication in the Federal Register. Reply comments are due 60 days after publication in the Federal Register.

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