Pole Attachment Item Would Delegate Preemption to Bureaus

The FCC’s draft third report and order and declaratory ruling on pole attachments released today with the tentative agenda for the agency’s Aug. 2 meeting includes several provisions aimed at preempting state and local government actions that the Commission deems to block telecom facilities deployment or inhibit rebuilding or restoration of broadband infrastructure after a disaster.

The draft item would include a provision delegating authority to act petitions for preemption of moratoria to the Wireline Competition and Wireless Telecommunications bureaus.

Also on the tentative agenda for the Aug. 2 meeting are a draft public notice to set procedures for auctions of 28 gigahertz and 24 GHz band spectrum; a draft further notice of proposed rulemaking on changes to the rules for the 37 GHz, 39 GHz, and 47 GHz bands to facilitate a planned auction next year; a draft notice of proposed rulemaking to provide TV repacking funding to low-power TV, TV translator, and FM radio stations; a draft notice of inquiry seeking input on a potential telehealth pilot program; and a draft report and order to establish rules for a broadcast ownership diversity incubator program.

As FCC Chairman Ajit noted yesterday in a blog post (TR Daily, July 11), the pole attachment item stems in part from a “one-touch-make-ready” (OTMR) recommendation pole developed by the FCC’s Broadband Deployment Advisory Committee, which has been criticized for its sparse local and state government representation, compared to industry members.

The FCC said today in a fact sheet accompanying the draft text in WC docket 17-84 and WT docket 17-49 that the declaratory ruling “would conclude that section 253(a) of the Communications Act prohibits state and local moratoria on telecommunications facilities deployment.”

It would define “‘moratoria’ barred by section 253(a) to include both express moratoria and de facto moratoria that effectively halt or suspend the acceptance, processing, or approval of applications or permits,” the fact sheet says.

The draft declaratory ruling would also “[d]etermine that moratoria are generally not protected by the exceptions to the section 253(a) prohibition” and would “[d]irect the Wireline Competition Bureau and Wireless Telecommunications Bureau to act promptly on petitions challenging specific alleged moratoria.”

The draft third report order would also include a preemption provision making “clear” that the FCC “will preempt, on a case-by-case basis, state and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster. 

“We prefer to exercise our authority to preempt state and local requirements that inhibit network restoration, to the extent necessary and warranted under section 253 and/or 332(c)(7), on an expedited adjudicatory case-by-case basis, in which we can take into account the particularized circumstances of the state or local law in question and the impact of the disaster, and other relevant factors, rather than through adoption of a rule. In such cases, we direct the Wireline Competition Bureau and the Wireless Telecommunications Bureau to expedite the consideration of disaster relief petitions by placing petitions on public notice in a timely fashion and adopting expedited comment cycles. In entertaining such petitions, the Bureaus should consider whether the state or local law in question, even if it otherwise may be prudent, materially inhibits or limits the rebuilding of telecommunications infrastructure in the wake of a disaster,” it says.

However, it also would “recognize that some states will seek to build on the rules that we adopt herein in order to serve the particular needs of their communities. Provided such state requirements do not conflict with the rules we adopt today, states are free to experiment with other ways to encourage broadband deployment in their local jurisdictions.”

The draft third report and order would also “[p]ermit new attachers to elect an OTMR process for simple make-ready for wireline attachments in the ‘communications space’ on a pole”; ‘[e]stablish safeguards in the OTMR process to promote coordination among the parties and ensure that new attachers perform work safely and reliably”; “[r]etain a multi-party process for other new attachments where safety and reliability risks are greater, while making some modifications to speed deployment”; “[c]odify the Commission’s existing precedent that permits attachers to ‘overlash’ existing wires without first seeking the utility’s approval while allowing the utility to request reasonable advance notice of overlashing”; and [e]liminate outdated disparities between the pole attachment rates incumbent carriers must pay compared to other similarly-situated cable and telecommunications attachers,” according to the fact sheet.

The draft notice of inquiry on the telehealth initiative in WC docket 18-213 would “[s]eek comment on creating a Universal Service Fund pilot program to promote the use of broadband-enabled telehealth services among low-income families and veterans, with a focus on services delivered directly to patients beyond the doors of brick-and-mortar health care facilities,” according to the FCC fact sheet.

It would also seek comment on “the goals of, and statutory authority for, the pilot program” and “the design of the pilot program, including: (1) the program budget; (2) the application process and types of telehealth pilot projects that should be funded; (3) eligibility criteria for participating health care providers, broadband service providers, and low-income consumers; (4) the broadband services and other communications services and equipment that should be supported; (5) the amount of support and how it should be disbursed; and (6) the duration of the program.”

And it would seek comment “on how to measure the effectiveness of pilot projects in achieving the goals of the program.”

Regarding the eligibility criteria for participating broadband service providers, the draft notice of inquiry seeks comment on imposing a requirement that they be facilities-based.

“We believe that this approach would be consistent with the Lifeline program, which also targets benefits toward low-income consumers and limits service provider participation to ETCs [eligible telecommunications carriers]. Further, we believe that participants should be facilities-based ETCs given that one of the goals of the pilot is to increase broadband deployment in unserved and underserved areas. We seek comment on these views. Should we instead permit participation in the pilot program by facilities-based broadband service providers that are not ETCs, and if so, why? Are there other criteria we should consider in determining which broadband service providers should be eligible to participate?” it says.

The draft public notice establishing the application and bidding procedures for the 28 GHz and 24 GHz band auctions would adopt the proposal to auction upper microwave flexible use service (UMFUS) licenses in two separate auctions. The 28 GHz band auction would start Nov. 14, with the 24 GHz band sale commencing after the first auction has concluded.

“The auction of the 28 GHz band (Auction 101) would employ the Commission’s standard simultaneous multiple round (SMR) auction format. This format offers every license for bid at the same time and consists of successive bidding rounds in which bidders may place bids on individual licenses,” a fact sheet on the public notice in AU docket 18-85 noted. “The auction of the 24 GHz band (Auction 102) would employ a clock auction format, which would allow bidding on generic blocks in each PEA in successive clock bidding rounds. The clock phase would be followed by an assignment phase to allow winners of generic blocks to bid for frequency-specific license assignments, while ensuring contiguous block assignments. The Auction 102 format would be similar to the forward auction of the Broadcast Incentive Auction.”

The public notice also would “[a]dopt the proposal for separate application filing windows (one for Auction 101 and one for Auction 102), and determine that the two initial filing windows would run concurrently” and would “[e]stablish that certain of the Commission’s auction rules (e.g., the prohibition on certain communications) would apply across both auctions, given that parties wishing to participate in either auction would be applicants during overlapping periods of time.”

The public notice also would “[a]dopt proposed bidding credit caps of $25 million for small businesses and $10 million for rural service providers.”

In April, the FCC unanimously adopted a public notice seeking comments on application and bidding procedures for the 28 GHz and 24 GHz band auctions (TR Daily, April 17).

In response to the public notice, wireless carriers and trade groups said the FCC should schedule its application window for its 24 GHz band auction after the earlier 28 GHz band closes (TR Daily, May 10), which they said would enable more efficient planning for parties. They also expressed concern with the proposal to apply the anti-collusion rules across the two auctions, saying it would chill discussions among market players for a lengthy period.

The FCC also plans to consider a fourth further notice of proposed rulemaking in WT docket 14-177 proposing an auction mechanism to transition existing 39 GHz band holdings to a new flexible-band plan.  The item is designed to clear the way for an expected auction of 37 GHz, 39 GHz, and 47 GHz band spectrum in the second half of next year.

The item follows up on earlier items the Commission adopted in its spectrum frontiers proceeding (TR Daily, July 14, 2016; Nov. 16, 2017; and June 7).

The item would “[p]ropose to modify the 39 GHz block size from 200 megahertz to 100 megahertz in order to simplify the transition from existing license holdings to reconfigured holdings, and propose to modify the Upper 37 GHz and 47 GHz (47.2-48.2 GHz) band plans from 200 megahertz to 100 megahertz channels to facilitate the auctioning of all three bands together,” a fact sheet noted.

It also would “[p]ropose an incentive auction that will offer contiguous blocks of spectrum throughout the 39 GHz and Upper 37 GHz bands, while protecting spectrum usage rights under existing licenses. The proposed incentive auction would have two phases: a clock phase, in which bidders bid on generic license blocks; and an assignment phase, in which clock phase winners can bid on specific frequencies. New entrants and participating incumbents could bid for new licenses. Incentive payments would be offered to incumbents who choose to relinquish their spectrum usage rights to make new licenses available.”

The item also would “[p]ropose a pre-auction voucher exchange that would allow incumbent licensees to consolidate and rationalize their holdings before the auction” and “[p]ropose to repack any incumbent licensees that choose not to participate in the incentive auction,” the fact sheet added.

The Commission also plans to consider an NPRM and order launching the process of implementing provisions of the RAY BAUM’S Act, which became law in March (TR Daily, March 23). Those provisions directed the agency to reimburse some low power TV and TV translator stations, and FM radio stations, for repacking costs in the wake of the incentive auction. The bill also included an additional $1 billion in reimbursement funding.

The NPRM in MB docket 18-214 and GN docket 12-268 would “[p]ropose a mechanism for reimbursing the newly eligible entities that is substantially similar to the process we currently use to reimburse full power and Class A licensees and MVPDs,” a fact sheet said. It also would “[t]entatively conclude that LPTV and TV translator stations are eligible for reimbursement if (1) they filed an application during the Commission’s Special Displacement Window and obtained a construction permit, and (2) were licensed and transmitting for at least 9 of the 12 months prior to April 13, 2017.”

The NPRM also would “[t]entatively conclude that both full power FM stations and FM translators that were licensed and transmitting on April 13, 2017, using the facilities impacted by a repacked television station, are eligible for reimbursement.” And it would “[p]ropose that this will include FM stations that incur costs because they must permanently relocate, temporarily or permanently modify their facilities, or purchase or modify auxiliary facilities to provide service to at least 80 percent of their primary station’s coverage area or population during a period of time when construction work is occurring on a collocated repacked television station’s facilities.”

The item also would “[d]iscuss the measures we propose to take to protect the Reimbursement Fund against waste, fraud, and abuse.”

In the order, the FCC would “[d]elegate authority to the Media Bureau to engage a contractor to assist in the reimbursement process and administration of the Reimbursement Fund for LPTV/translator and FM stations, and to make determinations regarding eligible costs and the reimbursement process, such as calculating the amount of allocations to eligible entities and seeking comment on a revised Catalog of Eligible Expenses,” the fact sheet noted. —Lynn Stanton, lynn.stanton@wolterskluwer.com, and Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily