New OTMR Rules Would Cover 'Vast Majority' of Pole Attachments, Among Aug. 2 Meeting Items

Possible changes to federal pole-attachment rules raised questions for Public Utility Commission members weighing if Pennsylvania should take pole regulation duties from the FCC. Commissioner Brendan Carr, overseeing FCC work on wireless infrastructure, isn’t saying when he expects to move forward on an item addressing rates and fees by state and local governments (see 1806260063).

A declaratory ruling would say local moratoriums on telecom services and facilities deployment are prevented by Section 253(a) of the Communications Act. It would define moratoriums to include “both express moratoria and de facto moratoria that effectively halt or suspend the acceptance, processing, or approval of applications or permits.” The FCC would direct the Wireless and Wireline bureaus to act promptly on any complaints of moratoria. The order would “make clear that the FCC will preempt, on an expedited case-by-case basis, state and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster.”

“Now, more than ever, access to this vital infrastructure must be swift, predictable, safe, and affordable, so that broadband providers can continue to enter new markets and deploy facilities that support high-speed broadband,” the draft federal order states. “Pole access also is essential to the race for 5G because mobile and fixed wireless providers are increasingly deploying innovative small cells on poles and because these wireless services depend on wireline backhaul.” The FCC said as many as 150,000 small cells are likely to be in use in the U.S. by year's end, growing to 800,000 by 2026.

New attachers could choose an OTMR process for wireline attachments located in the “communications space” on a pole. The order would “establish safeguards in the OTMR process to promote coordination among the parties and ensure that new attachers perform work safely and reliably,” the FCC said. It would keep in place a multiparty process for other new attachments where threats to safety or reliability are greater.

The draft codifies existing policies allowing attachers to “overlash” wires without first seeking a utility’s approval while allowing the utility to request “reasonable advance notice of overlashing,” the FCC said. It would end disparities between pole attachment rates incumbent carriers pay compared with other similarly situated cable and telecom attachers.

Pennsylvania

State commissioners voted 5-0 Thursday to move ahead with a pole-attachments rulemaking in docket L-2018-3002672 that could make Pennsylvania the first state in nearly a decade to reverse pre-empt the FCC regime (see 1807110049). Some commissioners asked about the state’s timing, with the FCC now weighing changes to federal rules and state legislation possible.

Chairman Gladys Brown asked what pending BDAC recommendations mean for Pennsylvania. Commissioner Andrew Place sought comments on “the legal and technical interactions and ramifications of any future Pennsylvania statutes that may address pole attachments with any potentially adopted commission rules that are based on the FCC framework,” and the impact of adopting the current FCC framework in Pennsylvania while the federal agency “may proceed with future changes in its own regulations on pole attachments.” Place wonders if Pennsylvania rules would be “automatically linked” with federal changes, or if the PUC would have to start another proceeding to align rules, he said.

Commissioner David Sweet supports the rulemaking’s goal but worries about PUC ability to regulate pole attachments, he said. “This impact on our resources has not yet been quantified, so at this point we have no idea of the potential cost to the commission of this undertaking, nor have we identified any new revenue sources … to address these new responsibilities.” CTIA looks forward to working with the PUC "to craft rules to promote 5G deployment in the state,” a spokesperson said.

Pennsylvania commissioners also voted 5-0 to seek comment on updating wireline telecom rules. The advance notice of proposed rulemaking (ANOPR) in docket L-2018-3001391 connects to a 2015 PUC order that reclassified 153 of Verizon’s 194 Pennsylvania wire centers as competitive and waived certain regulations for five years pending completion of a rulemaking about competitive and noncompetitive wire center regulations. The ANOPR asks if the PUC should make the Verizon waivers permanent; modify or delete any outdated regulations in noncompetitive wire centers; create separate chapters in rules for competitive versus noncompetitive centers; or consider any alternative regulatory structures. Comments are due 60 days after the notice is published in the Pennsylvania Bulletin, replies 30 days later.

The wireline rulemaking is a chance for the PUC to recognize “economic realities of what’s happening in the marketplace” and the “precipitous drop” in the number of consumers using wireline services, said Commissioner John Coleman. “Technology has advanced dramatically” and Pennsylvania regulations must keep pace, he said. Place wants comments on how other states updated such regulations, especially those on reliability, service quality and consumer protections. Brown dissented from the 2015 decision and now cautioned that the commission can’t develop rules for competitive wire centers and apply them to noncompetitive wire centers without a prior reclassification determination required by state law.

Incubators, Repacking

The August FCC draft incubator item would allow incubator broadcasters to get waiver of local radio ownership rule in either “the incubated market or a comparable radio market,” it said, as expected (see 1807110053). Though the waiver wouldn’t be granted until after completion of the three-year incubation period, the agency would grant temporary waivers of the rule and the AM/FM subcap if needed to allow the incubation relationship to exist, the draft order said. An incubated entity must qualify as a small business as defined by the Small Business Administration and may hold attributable interest in a maximum of three AM or FM radio stations and no TV stations.

For an incubation relationship to be considered successful at the end of the incubation period, the incubated entity “must own a new full-service radio station or its previously struggling station must be on a firmer footing,” said a fact sheet. The incubated entity must have “autonomy over decisions related to the incubated station, including programming, during the incubation relationship,” it said.

The draft NPRM and order on implementing reimbursement funding proposes to allocate funds to low-power TV, translators and radio stations affected by the incentive auction and repacking using a system similar to that used by full-power and Class A TV stations, said a fact sheet. The order would let the Media Bureau hire a contractor to oversee the process of determining eligible costs and overseeing dispensation of funds.

The NPRM would tentatively conclude that LPTV and translator stations are eligible for reimbursement only if they filed an application in the displacement window and were licensed and transmitting for “at least 9 of the 12 months prior to April 13, 2017.” FMs are eligible if the TV repacking causes them to incur costs from permanent relocation, temporary or permanent facility modifications, buying or modifying auxiliary facilities “to provide service to at least 80 percent of their primary station’s coverage area or population,” the draft said.

Incentive Auction

Pai proposed a Further NPRM on cleaning up the 39 GHz band, which would include an incentive auction, as the FCC looks to get the best value out of the 37, 39 and 49 GHz bands.

The 39 and upper 37 GHz bands present “a critical opportunity for 5G deployment, as it represents the largest amount of contiguous spectrum available for flexible-use wireless service in the millimeter wave bands,” the FCC said Thursday. Under the proposal, which Pai discussed briefly Wednesday (see 1807110053), each band would be available in 200 MHz chunks.

In the auction, similar to the TV incentive auction, the FCC would sell “contiguous blocks of spectrum throughout the 39 GHz and Upper 37 GHz bands, while protecting spectrum usage rights under existing licenses,” the FCC said. The auction would have two phases -- a clock phase, in which bidders bid on generic license blocks and an assignment phase, allowing winners to bid on specific frequencies. “New entrants and participating incumbents could bid for new licenses,” the FCC said. “Incentive payments would be offered to incumbents who choose to relinquish their spectrum usage rights to make new licenses available.”

Telehealth

A draft notice of inquiry would explore creating a $100 million USF pilot program to spur the use of broadband-enabled telehealth services for low-income families and veterans.

The focus would be "on services delivered directly to patients beyond the doors of brick-and-mortar health care facilities," said the draft NOI. It would seek comment on: a budget; the application process and types of projects to be funded; eligibility criteria for participating low-income consumers and providers of healthcare and broadband services; the broadband and other communications services and equipment to be supported; the amount of support and how it should be disbursed; and the duration of the program.

"Each telehealth pilot project could receive up to $5 million ... to support broadband connectivity to low-income patients and increased capabilities for the health care provider," said the draft of the plan. Carr, whom Pai tasked with leading the effort, said Wednesday the aim is to further the movement toward "connected care everywhere" by inviting healthcare and broadband providers seeking support to submit "packet" applications offering to make their own contributions.