[Federal Register Volume 82, Number 90 (Thursday, May 11, 2017)]
[Notices]
[Pages 22000-22004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09541]


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FEDERAL COMMUNICATIONS COMMISSION

[WC Docket No. 17-84; FCC 17-37]


Accelerating Wireline Broadband Deployment by Removing Barriers 
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This Notice of Inquiry (Notice) seeks comment on whether the 
Commission should enact rules to promote the deployment of broadband 
infrastructure by preempting state and local laws that inhibit 
broadband deployment, such as state and local moratoria on market entry 
or the deployment of telecommunications facilities, excessive delays in 
negotiations and approvals for rights-of-way agreements and permitting 
for telecommunications services, excessive state and local fees that 
may have the effect of prohibiting the provision of telecommunications 
services, unreasonable conditions or requirements in the context of 
granting access to rights-of-way, permitting, construction, or 
licensure related to the provision of telecommunications services, bad 
faith conduct in the context of deployment, rights-of-way, permitting, 
construction, or licensing negotiations and processes, and any other 
instances where state or local legal requirements or practices prohibit 
the provision of telecommunications services. This Notice also seeks 
comment on whether there are state laws governing the maintenance or 
retirement of copper facilities that serve as a barrier to deploying 
next-generation technologies and services that the Commission might 
seek to preempt. The Commission adopted the Notice in conjunction with 
a Notice of Proposed Rulemaking and Request for Comment in WC Docket 
No. 17-84.

DATES: Comments are due on or before June 12, 2017, and reply comments 
are due on or before July 10, 2017.

ADDRESSES: All filings in response to the Notice must refer to WC 
Docket No. 17-84. The Commission strongly encourages parties to develop 
responses to the Notice that adhere to the organization and structure 
of the Notice. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS):
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission. 
All hand-delivered or messenger-delivered paper filings for the 
Commission's Secretary must be delivered to FCC Headquarters at 445 
12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building. Commercial overnight mail 
(other than U.S. Postal Service Express Mail and Priority Mail) must be 
sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal 
Service first-class, Express, and Priority mail must be addressed to 
445 12th Street SW., Washington DC 20554.
     People With Disabilities: To request materials in 
accessible formats for people with disabilities (braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (tty).
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau, 
Competition Policy Division, Michele Berlove, at (202) 418-1477, or 
Michael Ray, at (202) 418-0357.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Inquiry (Notice) in WC Docket No. 17-84, adopted April 20, 2017 and 
released April 21, 2017. The full text of this document is available 
for public inspection during regular business hours in the FCC 
Reference Information

[[Page 22001]]

Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 
20554. It is available on the Commission's Web site at http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0421/FCC-17-37A1.pdf.

Synopsis

I. Introduction

    1. High-speed broadband is an increasingly important gateway to 
jobs, health care, education, information, and economic development. 
Access to high-speed broadband can create economic opportunity, 
enabling entrepreneurs to create businesses, immediately reach 
customers throughout the world, and revolutionize entire industries. 
Today, we propose and seek comment on a number of actions designed to 
accelerate the deployment of next-generation networks and services by 
removing barriers to infrastructure investment.
    2. This Notice seeks to better enable broadband providers to build, 
maintain, and upgrade their networks, which will lead to more 
affordable and available Internet access and other broadband services 
for consumers and businesses alike. Today's actions, through this 
Notice and accompanying Notice of Proposed Rulemaking and Request for 
Comment, propose to remove regulatory barriers to infrastructure 
investment at the federal, state, and local level; suggest changes to 
speed the transition from copper networks and legacy services to next-
generation networks and services; and propose to reform Commission 
regulations that increase costs and slow broadband deployment.

II. Prohibiting State and Local Laws Inhibiting Broadband Deployment

    3. We seek comment on whether we should enact rules, consistent 
with our authority under Section 253 of the Act, to promote the 
deployment of broadband infrastructure by preempting state and local 
laws that inhibit broadband deployment. Section 253(a), which generally 
provides that no state and local legal requirements ``may prohibit or 
have the effect of prohibiting'' the provisioning of interstate or 
intrastate telecommunications services, provides the Commission with 
``a rule of preemption'' that ``articulates a reasonably broad 
limitation on state and local governments' authority to regulate 
telecommunications providers.'' Section 253(b), provides exceptions for 
state and local legal requirements that are competitively neutral, 
consistent with Section 254 of the Act, and necessary to preserve and 
advance universal service. Section 253(c) provides another exception 
described by the Eighth Circuit as a ``safe harbor functioning as an 
affirmative defense'' which ``limits the ability of state and local 
governments to regulate their rights-of-way or charge `fair and 
reasonable compensation.''' Under Section 253(d), Congress directed the 
FCC to preempt the enforcement of any legal requirement which violates 
253(a) or 253(b) ``after notice and an opportunity for public 
comment.''
    4. While we recognize that not all state and local regulation poses 
a barrier to broadband development, we seek comment below on a number 
of specific areas where we could utilize our authority under Section 
253 to enact rules to prevent states and localities from enforcing laws 
that ``may prohibit or have the effect of prohibiting the ability of 
any entity to provide any interstate or intrastate telecommunications 
service.'' In our preliminary view, restrictions on broadband 
deployment may effectively prohibit the provision of telecommunications 
service, and we seek comment on this view. What telecommunications 
services are effectively prohibited by restrictions on broadband 
deployment? In each case described below, we seek comment on whether 
the laws in question are inconsistent with Section 253(a)'s prohibition 
on local laws that inhibit provision of telecommunications service.
    5. Deployment Moratoria. First, we seek comment on adopting rules 
prohibiting state or local moratoria on market entry or the deployment 
of telecommunications facilities. We also seek comment on the types of 
conduct such rules should prevent. We invite commenters to identify 
examples of moratoria that states and localities have adopted. How do 
state and local moratoria interfere with facilities deployment or 
service provision? What types of delays result from local moratoria 
(e.g., application processing, construction)? How do moratoria affect 
the cost of deployment and providing service, and is this cost passed 
down to the consumer? Are there any types of moratoria that help 
advance the goals of the Act? If we adopt the proposal to prohibit 
moratoria, should we provide an exception for certain moratoria, such 
as those that are limited to exigent circumstances or that have certain 
sharply restricted time limits? If so, what time limits should be 
permissible?
    6. Rights-of-Way Negotiation and Approval Process Delays. Second, 
we seek comment on adopting rules to eliminate excessive delays in 
negotiations and approvals for rights-of-way agreements and permitting 
for telecommunications services. We invite commenters to identify 
examples of excessive delays. How can the Commission streamline the 
negotiation and approval process? For instance, should the Commission 
adopt a mandatory negotiation and/or approval time period, and if so, 
what would be an appropriate amount of time for negotiations? For 
purposes of evaluating the timeliness of negotiations, when should the 
Commission consider the negotiations as having started and having 
stopped? For example, the Commission adopted rules placing time limits 
on applicants for cable franchises. We seek comment on similar rules 
for telecommunications rights-of-way applicants. How have slow 
negotiation or approval processes inhibited the provision of 
telecommunications service? Are there any examples of delays that 
jeopardized investors or deployment in general? How can local 
governments expedite rights-of-way negotiations and approvals? Are 
there any examples of successful expedited processes? How should 
regulations placing time limits on negotiations address or recognize 
delays in processing applications or negotiations that result from 
local moratoria? For example, in 2014, the Commission clarified that 
the shot clock timeframe for wireless siting applications runs 
regardless of any moratorium. Are stalled negotiations and approvals 
ever justified, and if so how could new rules take these situations 
into account?
    7. Excessive Fees and Other Excessive Costs. Third, we seek comment 
on adopting rules prohibiting excessive fees and other costs that may 
have the effect of prohibiting the provision of telecommunications 
service. We invite commenters to identify examples of fees adopted by 
states and localities that commenters consider excessive. For example, 
we note that many states and localities charge rights-of-way fees. Our 
preliminary view is that Section 253 applies to fees other than cable 
franchise fees as defined by Section 622(g) of the Act and we seek 
comment on this view. By ``rights-of-way fees,'' we refer to those fees 
including, but not limited to, fees that states or local authorities 
impose for access to rights-of-way, permitting, construction, 
licensure, providing a telecommunications service, or any other fees 
that relate to the provision of telecommunications service. We 
recognize Section 622 of the Act governs the administration of cable 
franchise fees, and that Section 622(i) limits the Commission's 
authority to ``regulate the

[[Page 22002]]

amount of the franchise fees paid by a cable operator, or regulate the 
use of funds derived from such fees,'' except as otherwise permitted 
elsewhere in Section 622. Our preliminary view is that Section 622(i) 
would prevent the Commission from enacting rules pursuant to Section 
253 to address ``excessive'' cable franchise fees, but that such 
franchise fees could be taken into account when determining whether 
other types of fees are excessive. We seek comment on this view. Also, 
we seek comment on whether there are different types of state or local 
fees, authorized under the provisions of the Act other than 622, for 
which application of Section 253 would not be appropriate.
    8. We recognize that states and localities have many legitimate 
reasons for adopting fees, and thus our focus is directed only on truly 
excessive fees that have the effect of cutting off competition. We seek 
comment on how the Commission should define what constitutes 
``excessive'' fees. For example, should rights-of-way fees be capped at 
a certain percentage of a provider's gross revenues in the permitted 
area? If so, at what percentage? For example, Section 622 of the Act 
provides that for any twelve-month period, the franchise fees paid by a 
cable operator with respect to a cable system shall not exceed five 
percent of the cable operator's gross revenues derived from a cable 
service. When a provider seeks to offer additional services using the 
rights-of-way under an existing franchise or authorization, are there 
circumstances in which it may be excessive to require the provider to 
pay additional fees in connection with the introduction of additional 
services? More broadly, are fees tied to a provider's gross revenues 
``fair and reasonable'' if divorced from the costs to the state or 
locality of allowing access? If we look at costs in assessing fees, 
should we focus on the incremental costs of each new attacher? Should 
attachers be required to contribute to joint and common costs? And if 
so, should we look holistically at whether a state or locality recovers 
more than the total cost of providing access to the right of way from 
all attaching entities? We seek comment on evaluating other fees in a 
similar manner. Are states and localities imposing fees that are not 
``fair and reasonable'' for access to local rights-of-way? How do these 
fees compare to construction costs? Should fees be capped to only cover 
costs incurred by the locality to maintain and manage the rights-of-
way? Should we require that application fees not exceed the costs 
reasonably associated with the administrative costs to review and 
process an application? Should any increase in fees be capped or 
controlled? For example, should fees increases be capped at ten percent 
a year? What types of fees should we consider within the scope of any 
rule we adopt? How do excessive fees impact consumers?
    9. Unreasonable Conditions. Fourth, we seek comment on adopting 
rules prohibiting unreasonable conditions or requirements in the 
context of granting access to rights-of-way, permitting, construction, 
or licensure related to the provision of telecommunications services. 
For example, we seek comment on rights-of-way conditions that inhibit 
the deployment of broadband by forcing broadband providers to expend 
resources on costs not related to rights-of-way management. Do these 
conditions make the playing field uneven for smaller broadband 
providers and potential new entrants? If the Commission were to adopt 
such rules, how should the Commission define what constitutes an 
``unreasonable'' rights-of-way condition? We seek comment from both 
providers and local governments on conditions that they consider are 
reasonable and unreasonable. Should the Commission place limitations on 
requirements that compel the telecommunications service provider to 
furnish service or products to the right-of-way or franchise authority 
for free or at a discount such as building out service where it is not 
demanded by consumers, donating equipment, or delivering free broadband 
to government buildings? Should non-network related costs be factored 
into any kind of a fee cap? For instance, the Commission determined 
that non-incidental franchise-related costs and in-kind payments 
unrelated to the provision of cable service required by local franchise 
authorities for cable franchises count toward the five percent cable 
franchise fee cap. We seek comment on whether the Commission should 
adopt similar rules for telecommunication rights-of-way agreements.
    10. Bad Faith Negotiation Conduct. Fifth, we seek comment on 
whether the Commission should adopt rules banning bad faith conduct in 
the context of deployment, rights-of-way, permitting, construction, or 
licensure negotiations and processes. We seek comment on what types of 
bad faith conduct such rules should prohibit and examples of such 
conduct. Should the Commission ban bad faith conduct generally, 
specific forms of bad faith conduct, or both? Should the Commission 
establish specific objective criteria that define the meaning of ``bad 
faith'' insofar as the Commission prohibits ``bad faith'' conduct 
generally? If so, we seek comment on proposed criteria. What types of 
negotiation conduct have directly affected the provision of 
telecommunications service? Would a streamlined process for responding 
to bad faith complaints help negate such behavior? What would that 
process look like?
    11. Other Prohibitive State and Local Laws. Finally, we seek 
comment regarding any other instances where the Commission could adopt 
rules to preempt state or local legal requirements or practices that 
prohibit the provision of telecommunications service. For instance, 
should the Commission adopt rules regarding the transparency of local 
and state application processes? Could the Commission use its authority 
under Section 253 to regulate access to municipally-owned poles when 
the actions of the municipality are deemed to be prohibiting or 
effectively prohibiting the provisions of telecommunications service? 
If so, could the Commission use its Section 253 authority in states 
that regulate pole attachment under Section 224(c)? Are there any other 
local ordinances that erect barriers to the provision of 
telecommunications service especially as applied to new entrants? Are 
there any other specific rights-of-way management practices that 
frustrate, delay or inhibit the provision of telecommunications 
service? The Commission has described Section 253(a) as preempting 
conduct by a locality that materially inhibits or limits the ability of 
a provider ``to compete in a fair and balanced legal and regulatory 
environment.'' Is this the legal standard that should apply here? We 
seek comment on identifying particular practices, regulations and 
requirements that would be deemed to violate Section 253 in order to 
provide localities and industry with greater predictability and 
certainty.
    12. Authority To Adopt Rules. The Commission has historically used 
its Section 253 authority to respond to preemption petitions that 
involve competition issues and relationships among the federal, state 
and local levels of government. We seek comment on our authority under 
Section 253 to adopt rules that prospectively prohibit the enforcement 
of local laws that would otherwise prevent or hinder the provision of 
telecommunications service. Our view is that under Section 201(b) and 
Section 253, the Commission has the authority to engage in a rulemaking 
to adopt rules that further

[[Page 22003]]

define when a state or local legal requirement or practice constitutes 
an effective barrier to the provision of telecommunications service 
under Section 253(a). We seek comment on this approach. We also 
recognize that state and local governments have authority, pursuant to 
Sections 253(b) and (c) to, among other things, regulate 
telecommunications services to protect the public safety and welfare, 
provide universal service, and to manage public rights-of-way on a non-
discriminatory basis. How can we ensure that any rules we adopt comport 
with Sections 253(b) and (c)? Should we adopt the text of Sections 
253(b) and (c), to the extent relevant, as explicit carve-outs from any 
rules that we adopt? Could we include the substance of Sections 253(b) 
and (c) in rules without an explicit, verbatim carve-out? Would 
enacting rules conflict with Section 253(b) or (c)?
    13. Would adopting rules to interpret or implement Section 253(a) 
be consistent with Section 253(d), which directs the Commission to 
preempt the enforcement of particular State or local statutes, 
regulations, or legal requirements ``to the extent necessary to correct 
such violation or inconsistency''? Subsection (d) directs the 
Commission to preempt such particular requirements ``after notice and 
an opportunity for public comment.'' Does this preclude the adoption of 
general rules? Would notice, comment, and adjudicatory action in a 
Commission proceeding to take enforcement action following a rule 
violation satisfy these procedural specifications? Can we read Section 
253(d) as setting forth a non-mandatory procedural vehicle that is not 
implicated when adopting rules pursuant to Sections 253(a)-(c)? If the 
Commission were to adopt rules pursuant to Section 253, we seek comment 
on whether Section 622 of the Act limits the Commission's authority to 
enact rules with respect to non-cable franchise fee rights-of-way 
practices that might apply to cable operators in their capacities as 
telecommunications providers.
    14. Collaboration With States and Localities. We also seek comment 
on actions the Commission can take to work with states and localities 
to remove the barriers to broadband deployment. The Commission's newly 
formed Broadband Deployment Advisory Committee (BDAC) includes members 
from states and localities, and it has been charged with working to 
develop model codes for municipalities and states. The BDAC will also 
consider additional steps that can be taken to remove state and local 
regulatory barriers. Are there additional actions outside of the BDAC 
that the Commission can take to work with states and localities to 
promote adoption of policies that encourage deployment?
    15. We recognize that states and localities play a vital role in 
deployment and addressing the needs of their residents. How can we best 
account for states' and localities' important roles? Are collaborative 
efforts such as the development of recommendations through the BDAC 
sufficient to address the issues described above? What are the benefits 
and burdens of such an approach? To what extent should we rely on 
collaborative processes to remove barriers to broadband deployment 
before resorting to preemption?

III. Preemption of State Laws Governing Copper Retirement

    16. We seek comment on whether there are state laws governing the 
maintenance or retirement of copper facilities that serve as a barrier 
to deploying next-generation technologies and services that the 
Commission might seek to preempt. For example, certain states require 
utilities or specific carriers to maintain adequate equipment and 
facilities. Other states empower public utilities commissions, either 
acting on their own authority or in response to a complaint, to require 
utilities or specific carriers to maintain, repair, or improve 
facilities or equipment or to have in place a written preventative 
maintenance program. First, we seek comment on the impact of state 
legacy service quality and copper facilities maintenance regulations. 
Next, we seek comment on the impact of state laws restricting the 
retirement of copper facilities. In each case, how common are these 
regulations, and in how many states do they exist? How burdensome are 
such regulations, and what benefits do they provide? Are incumbent LECs 
or other carriers less likely to deploy fiber in states that continue 
to impose service quality and facilities maintenance requirements than 
in those states that have chosen to deregulate?
    17. We seek comment on whether Section 253 of the Act provides the 
Commission with authority to preempt state laws and regulations 
governing service quality, facilities maintenance, or copper retirement 
that are impeding fiber deployment. Do any such laws ``have the effect 
of prohibiting the ability of [those incumbent LECs] to provide any 
interstate or intrastate telecommunications service?'' Are such laws 
either not ``competitively neutral'' or not ``necessary to preserve and 
advance universal service, protect the public safety and welfare, 
ensure the continued quality of telecommunications services, and 
safeguard the rights of consumers,'' such that state authority is not 
preserved from preemption under Section 253(b)? Commenters arguing in 
favor of preemption should identify specific state laws they believe to 
be at issue. Would preemption allow the Commission to develop a uniform 
nationwide copper retirement policy for facilitating deployment of 
next-generation technologies? Are there other sources of authority for 
Commission preemption of the state laws being discussed that we should 
consider using?

IV. Procedural Matters

A. Ex Parte Rules

    18. The proceeding related to this Notice shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Rule 1.1206(b). In proceedings governed by 
Rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system

[[Page 22004]]

available for that proceeding, and must be filed in their native format 
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.

V. Ordering Clause

    19. Accordingly, it is ordered that, pursuant to the authority 
contained in Sections 1, 4(i), 4(j), and 403 of the Communications Act 
of 1934, as amended, 47 U.S.C 151, 154(i), 154(j), and 403, this Notice 
is adopted.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2017-09541 Filed 5-10-17; 8:45 am]
 BILLING CODE 6712-01-P