Incumbents Make Last FCC Push for OTMR, Pole-Attachment Changes; Some Hopeful
Incumbent interests pressed the FCC to revise aspects of a draft order on one-touch, make-ready and other pole-attachment changes aimed at facilitating broadband deployment. Filings posted Monday and late last week in docket 17-84 on final lobbying (see 1807260036) show electric utilities objected to the draft's proposed communications "self-help" remedies in the power space at the top of poles; cable sought to bolster the rights of existing attachers in the lower-down communications space; ILECs sought expanded application of a draft presumption to lower the attachment rates they pay pole owners; and the Communications Workers of America pushed for changes to uphold the safety and jobs of union members. New entrants remained supportive of the FCC direction as it prepares for a planned vote on the draft at commissioners' Thursday meeting.
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Some advocates seeking changes to the draft were hopeful the FCC will listen. "I think there is still room for some revisions," said David Rines, a Lerman Senter attorney representing Xcel Energy and Alliant Energy, which proposed modifications. Electric utilities are generally "supportive of the OTMR direction in the communications space of poles. There’s a lot of potential," he said. "We just want to make sure it works to speed deployment without compromising the safety or integrity of the infrastructure, or adding unnecessary costs and burdens." The FCC deserves credit overall, he said, but some details should be adjusted "to make sure this doesn't collapse into a series of disputes and processes that end up slowing things down."
“The electric space self-help remedy should be reconsidered," emailed Thomas Magee, a Keller and Heckman attorney for the Coalition of Concerned Utilities, which met with an aide to Chairman Ajit Pai. "It is so objectionable it would encourage utilities to minimize electric space activity by limiting pole replacements, unnecessarily frustrating the Commission’s broadband and 5G goals.” Meeting with that aide, Georgia Power voiced "deep concern" about the self-help proposal and stressed the "complexity of the electric distribution system." It said the FCC should issue a Further NPRM on self-help or "further confine the remedy to wireless attachments to incentivize expedited supply space make-ready." GP and other utilities (here) and the Utilities Technology Council (here) also made filings mixing various concerns with some support for the draft.
CWA wants changes to OTMR proposals it sees as radical. "They want one-size-fits-all for the entire country. It’s untested," Research Director Debbie Goldman told us. "It’s really risky, and there are ways to minimize the risks, and one of the ways is to let the existing attachers, within a timeline, move their equipment." CWA believes "there is an opportunity to make some adjustments," including to provisions affecting collective bargaining, she said. "We are still pushing because this is going to mean substitution of lower-wage, poorly trained, contractor jobs for good, middle-class, hometown, skilled union workers.” CWA made filings on meetings with all four commissioner offices (here, here, here and here), and delivered a petition with 6,877 member signatures objecting to "extreme" proposals. A couple thousand more members signed the petition online and filed more than 1,000 express comments in the docket (here) in recent days, Goldman said.
Charter Communications suggested possible revisions to "help existing attachers protect their investment by making it easier to seek indemnification when damage has occurred" in the OTMR process, said a filing on a discussion with an aide to Commissioner Mike O'Rielly. Comcast suggested changes "to minimize disruption to existing networks," including making clear "an existing attacher is permitted to manage and make modifications to its own facilities during any advance notice period (even if it is prohibited from performing reimbursable make-ready work for third parties during that period)," said a filing on meetings with aides to all four commissioners.
Some communications attorneys continue to doubt major changes. “I think we’re in good shape, said one telecom industry official. "I don’t think they’re going to change anything critical to OTMR in the communications space."
Incumbent telcos urged the FCC to extend a draft ILEC attacher right to a "presumptively 'just and reasonable' rate" beyond "newly-negotiated pole attachment agreements" with investor-owned utilities (IOUs). The draft approach is "too narrow, and would not attain the Commission’s stated goal of 'accelerat[ing] the deployment of next-generation infrastructure ... as well as additional competition,'" said a USTelecom filing on a meeting it and large members had with an aide to Pai (it also met with other commissioner offices and Wireline Bureau staffers). "No matter how wrong the IOU was regarding any (long since passed) purported benefits of an existing joint-use agreement, the IOU would now have every incentive to let these agreements -- in many cases thirty, forty, fifty years old and greater -- languish in 'evergreen' status at unreasonable rates, entirely refusing to renegotiate. Indeed, some of our members have experienced such tactics in the past. Under such conditions, litigation would be considerably more likely, not less." Verizon endorsed expanding the ILEC rate provision's scope (here), while it (here), Incompas (here) and others backed OTMR. AT&T sought changes, including a transition to new timelines.
CTIA and NATOA also were at odds over the draft: 1807300049.