[Federal Register Volume 82, Number 93 (Tuesday, May 16, 2017)]
[Proposed Rules]
[Pages 22453-22476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09689]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 51, and 63

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


Accelerating Wireline Broadband Deployment by Removing Barriers 
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, a Notice of Proposed Rulemaking (NPRM) seeks 
comment on a number of actions designed to remove regulatory barriers 
to infrastructure investment at the federal, state, and local level, 
speed the transition from copper networks and legacy services to next-
generation networks and services, and reform Commission regulations 
that increase costs and slow broadband deployment. The NPRM seeks 
comment on pole attachment reforms, changes to the copper retirement 
and other network change notification processes, and changes to the 
section 214(a) discontinuance application process. The Commission 
adopted the NPRM in conjunction with a Notice of Inquiry and Request 
for Comment in WC Docket No. 17-84.

DATES: Comments are due on or before June 15, 2017, and reply comments 
are due on or before July 17, 2017. Written comments on the Paperwork 
Reduction Act proposed information collection requirements must be 
submitted by the public, Office of Management and Budget (OMB), and 
other interested parties on or before July 17, 2017.

ADDRESSES: You may submit comments, identified by WC Docket No. 17-84, 
by any of the following methods:
    [ssquf] Federal Communications Commission's Web site: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    [ssquf] Mail: 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 St. 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.
    [ssquf] 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. In addition to filing comments 
with the Secretary, a copy of any comments on the Paperwork Reduction 
Act information collection requirements contained herein should be 
submitted to the Federal Communications Commission via email to 
[email protected] and to Nicole Ongele, Federal Communications Commission, 
via email to [email protected].

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau, 
Competition Policy Division, Michele Berlove, at (202) 418-1477, 
[email protected], or Michael Ray, at (202) 418-0357, 
[email protected]. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an

[[Page 22454]]

email to [email protected] or contact Nicole Ongele at (202) 418-2991.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) 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 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.
    Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998), http://www.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.
     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 St. 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).

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 NPRM 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 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. Pole Attachment Reforms

    3. Pole attachments are a key input for many broadband deployment 
projects. Reforms which reduce pole attachment costs and speed access 
to utility poles would remove significant barriers to broadband 
infrastructure deployment and in turn increase broadband availability 
and competition in the provision of high-speed services.
    4. The Communications Act of 1934, as amended (Act), grants the 
Commission authority to regulate attachments to utility-owned and -
controlled poles, ducts, conduits, and rights-of-way (collectively, 
poles). Among other things, the Act authorizes the Commission to 
prescribe rules ensuring ``just and reasonable'' ``rates, terms, and 
conditions'' for pole attachments and ``nondiscriminatory access'' to 
poles, rules defining pole attachment rates for attachers that are 
cable television systems and telecommunications carriers, rules 
regarding the apportionment of make-ready costs between utilities and 
attachers, and rules requiring all local exchange carriers (LECs) to 
``afford access to the poles, ducts, conduits, and rights-of-way of 
such carrier to competing providers of telecommunications service . . . 
.'' Section 224(a)(4) of the Act defines a pole attachment as any 
attachment by a cable television system or provider of 
telecommunications service to a pole, duct, conduit, or right-of-way 
owned or controlled by a utility. Accordingly, unless specified 
otherwise, we use the term ``pole attachment'' in this NPRM to refer to 
attachments not only to poles, but to ducts, conduits, and rights-of-
way as well. ``Make-ready'' generally refers to the modification of 
poles or lines or the installation of certain equipment (e.g., guys and 
anchors) to accommodate additional facilities. The Act also allows 
states to reverse-preempt the Commission's regulations so long as they 
meet certain federal standards. To date, twenty states and the District 
of Columbia have reverse-preempted Commission jurisdiction over the 
rates, terms, and conditions of pole attachments in their states.
    5. We seek to exercise this authority to accelerate the deployment 
of next-generation infrastructure so that consumers in all regions of 
the Nation can enjoy the benefits of high-speed Internet access as well 
as additional competition.

A. Speeding Access to Poles

    6. We seek comment on proposals to streamline and accelerate the 
Commission-established timeline for processing pole attachment 
requests, which currently envisions up to a five-month process 
(assuming all contemplated deadlines are met). Several proposals to 
speed pole access allow telecommunications and cable providers seeking 
to add equipment to a utility pole (a ``new attacher'') to adjust, on 
an expedited basis, the preexisting equipment of the utility and other 
providers already on that pole (``existing attachers''). We emphasize 
at the outset that we are seeking to develop an approach that balances 
the legitimate needs and interests of new attachers, existing 
attachers, utilities, and the public. In particular, we recognize that 
speeding access to poles could raise meaningful concerns about safety 
and protection of existing infrastructure. We intend to work toward an 
approach that facilitates new attachments without creating undue risk 
of harm. We intend for the proposals below to be a starting point that 
will stimulate refinements as we work toward potential adoption of a 
final pole attachment process.

[[Page 22455]]

1. Speeding the Current Commission Pole Attachment Timeline
    7. We seek comment on potential reforms to the various steps of the 
Commission's current pole attachment timeline to facilitate timely 
access to poles. Access to poles, including the preparation of poles 
for new attachments, must be timely in order to constitute just and 
reasonable access under section 224 of the Act. The Commission's 
current four-stage timeline for wireline and wireless requests to 
access the ``communications space'' on utility poles, adopted in 2011, 
provides for periods that do not exceed: application review and 
engineering survey (45 days), cost estimate (14 days), attacher 
acceptance (14 days), and make-ready (60-75 days). It also allows 
timeline modifications for wireless attachments above the 
communications space and for large requests.
    8. Application Review. We seek comment on whether we should require 
a utility to review and make a decision on a completed pole attachment 
application within a timeframe shorter than the current 45 days. Is 15 
days a reasonable timeframe for utilities to act on a completed pole 
attachment application? Is 30 days? We seek comment on, and examples 
of, current timelines for the consideration of pole attachment 
applications, especially in states that regulate their own rates, 
terms, and conditions for pole access. If we adopt a shorter timeline, 
we also seek comment on situations in which it might be reasonable for 
the utility's review of a pole attachment application to extend beyond 
the new shortened timeline.
    9. In addition, we seek comment on retaining the existing 
Commission rule allowing utilities 15 extra days to consider pole 
attachment applications in the case of large orders (i.e., up to the 
lesser of 3,000 poles or five percent of the utility's poles in a 
state). We also seek comment on capping, at a total of 45 days, utility 
review of those pole attachment applications that are larger than the 
lesser of 3,000 poles or five percent of a utility's poles in a state. 
We seek comment on possible alternatives by which we may take into 
account large pole attachment orders. We seek comment regarding the 
expected volume of pole attachment requests associated with the 5G 
rollouts of wireless carriers and whether the extended timelines for 
larger pole attachment orders might help utilities process the large 
volume of requests we anticipate will be associated with the 5G 
buildouts.
    10. Survey, Cost Estimate, and Acceptance. We seek comment on 
whether the review period for pole attachment applications should still 
include time for the utility to survey the poles for which access has 
been requested. With regard to the estimate and acceptance steps of the 
current pole access timeline, should we require a timeframe for these 
steps that is shorter than the current 28 days? Would it be reasonable 
to combine these steps into a condensed 14-day (or 10-day) period? 
Could we wrap these two steps into the make-ready timeframe? Would it 
be reasonable to eliminate these two steps entirely? If so, without the 
estimate and acceptance steps, then what alternatives should there be 
for requiring utilities and new attachers to come to an agreement on 
make-ready costs?
    11. Make-Ready. We also seek comment on approaches to shorten the 
make-ready work timeframe. The Commission currently requires that 
utilities give existing attachers a period not to exceed 60 days after 
the make-ready notice is sent to complete work on their equipment in 
the communications space of a pole. In adopting a 60-day maximum period 
for existing attachers to complete make-ready work, the 2011 Pole 
Attachment Order recommended as a ``best practice'' a make-ready period 
of 30 days or less for small pole attachment requests and 45 days for 
medium-size requests. Should the Commission adopt as requirements the 
``best practices'' timeframes set forth in the 2011 Pole Attachment 
Order? What other timeframes would be reasonable, recognizing the 
safety concerns and property interests of existing attachers and 
utilities when conducting make-ready work on a pole? We seek comment on 
any state experience with this phase of the make-ready process--how 
long is it taking existing attachers to perform make-ready work in 
states that are not subject to Commission pole attachment jurisdiction? 
Do existing attachers require the full make-ready periods to move their 
attachments such that the total timeline for a new attacher exceeds the 
Commission's existing pole attachment timeline? Are there situations in 
which it is reasonable for existing attachers to go beyond the current 
Commission timeframes to complete make-ready work? Further, are there 
ways that the Commission can eliminate or significantly reduce the need 
for make-ready work? For example, what can the Commission do to 
encourage utilities to proactively make room for future attachers by 
consolidating existing attachments, reserving space on new poles for 
new attachers, and allowing the use of extension arms to increase pole 
capacity?
    12. In addition, the Commission has adopted longer maximum periods 
for existing attachers and utilities to complete make-ready work in the 
case of large pole attachment orders (an additional 45 days) and in the 
case of wireless attachments above the communications space (a total of 
up to 90 days for such attachments or up to 135 days in the case of 
large wireless attachment orders). We seek comment on whether it is 
reasonable to retain these extended time periods for large pole 
attachment orders and for wireless attachments above the communications 
space. We seek comment on reasonable alternatives to these timelines, 
bearing in mind the safety concerns inherent in make-ready work above 
the communications space on a pole and the manpower concerns of 
existing attachers and utilities when having to perform make-ready on 
large numbers of poles in a condensed time period.
2. Alternative Pole Attachment Processes
    13. We seek comment generally on possible alternatives to the 
Commission's current pole attachment process that might speed access to 
poles. We also seek comment on potential remedies, penalties, and other 
ways to incent utilities, existing attachers, and new attachers to work 
together to speed the pole attachment timeline. If the Commission were 
to adopt any of the revisions proposed below or other revisions to our 
process, would section 224 of the Act support such an approach? What 
other statutory authority could the Commission rely on in adopting such 
changes? In considering the proposals below for alternatives to the 
pole attachment timeline, we seek comment on the need to balance the 
benefits of these alternatives against the safety and property concerns 
that are paramount to the pole attachment process. For example, we seek 
comment on the extent to which any of the proposals may violate the 
Fifth Amendment protections of utilities and existing attachers against 
the taking of their property without just compensation.
    14. Use of Utility-Approved Contractors to Perform Make-Ready Work. 
We seek comment on whether the Commission should adopt rules that would 
allow new attachers to use utility-approved contractors to perform 
``routine'' make-ready work and also to perform ``complex'' make-ready 
work (i.e., make-ready work that reasonably would be expected to cause 
a customer

[[Page 22456]]

outage) in situations where an existing attacher fails to do so. Under 
the Commission's current pole attachment timeline, utilities may allow 
existing attachers up to 60 days to complete make-ready work on their 
equipment in the communications space and utilities have the right to 
ask for an additional 15 days to complete the work when the existing 
attacher fails to do so. Only after that period of up to 75 days has 
run, and neither the existing attachers nor the utilities have met 
their deadlines, can new attachers begin to perform make-ready work 
using utility-approved contractors. The timelines are even longer in 
cases of larger pole attachment requests and for wireless make-ready 
work above the communications space on a pole. We seek comment on 
whether it would be reasonable to expand the use of utility-approved 
contractors to perform make-ready work, especially earlier in the pole 
attachment process. Would it be reasonable to eliminate the utility's 
right to complete make-ready work in favor of a new attacher performing 
the make-ready work after an existing attacher fails to meet its make-
ready deadline?
    15. We seek comment on balancing the benefits of allowing new 
attachers to use utility-approved contractors to perform make-ready 
work against any drawbacks of allowing contractors that may not be 
approved by existing attachers to move existing equipment on a pole. We 
urge commenters, whenever possible, to provide quantifiable data or 
evidence supporting their position. We note that AT&T, in its federal 
court challenge of Louisville, Kentucky's pole attachment ordinance, 
argued that utility-approved contractors ``have on occasion moved 
AT&T's network facilities, with less-than-satisfactory results,'' while 
Comcast argued in its federal court challenge to Nashville, Tennessee's 
pole attachment ordinance that third-party contractors ``are 
significantly more likely to damage Comcast's equipment or interfere 
with its services.'' We seek comment on other safety and property 
concerns that the Commission should account for in considering whether 
to allow an expanded role in the make-ready process for utility-
approved contractors. We also seek comment on liability safe harbors 
that would protect the property and safety interests of existing 
attachers, utilities, and their customers when new attachers use 
utility-approved contractors to perform make-ready work on poles and 
existing equipment on the poles. For example, to ensure protections for 
existing attachers and utilities, would it be reasonable to impose on 
new attachers requirements such as surety bonds, indemnifications for 
outages and damages, and self-help remedies for utilities and existing 
attachers to fix problems caused by new attacher contractors? Are there 
other safeguards that we can adopt to protect existing attachers, 
utilities, and their customers in the event that the new attacher's 
contractors err in the performance of make-ready work?
    16. For make-ready work that would be considered ``routine'' in the 
communications space of a pole, is it reasonable to allow a new 
attacher to use a utility-approved contractor to perform such work 
after notice has been sent to existing attachers? Would it be 
reasonable to allow new attachers to use utility-approved contractors 
to perform complex make-ready work as well? Also, because of the 
special skills required to work on wireless attachments above the 
communications space on a pole, we seek comment on whether utilities 
should be required to keep a separate list of contractors authorized to 
perform this specialized make-ready work. Currently, utilities are 
required to make available and keep up-to-date a reasonably sufficient 
list of contractors authorized to perform make-ready work in the 
communications space on a utility pole. Should utility-approved 
contractors that work for new attachers be allowed to perform make-
ready work on wireless attachments above the communications space on a 
pole?
    17. We also seek comment on the following proposals that address 
the safety and property concerns of existing attachers and utilities:
     Requiring all impacted attachers (new, existing, and 
utilities) to agree on a contractor or contractors that the new 
attacher could use to perform make-ready work; and/or
     requiring that existing attachers (or their contractors) 
be given the reasonable opportunity to observe the make-ready work 
being done on their existing equipment by the new attachers' 
contractors.
    We seek comment on the benefits of these and other alternative 
proposals involving the use of utility-approved contractors to perform 
make-ready work.
    18. New Attachers Performing Make-Ready Work. We seek comment on 
whether we should adopt rules to allow new attachers (using utility-
approved contractors) to perform routine make-ready work in lieu of the 
existing attacher performing such work. Recognizing that existing 
attachers may oppose such proposals, we seek comment on alternatives 
that would address their safety and property concerns, while still 
shortening the make-ready timeline. Allowing the new attacher to 
perform make-ready work would save time over the current Commission 
timeline by permitting the new attacher to initiate routine make-ready 
work after giving brief (or no) notice to existing attachers. We 
recognize that such a process would exclude existing attachers from the 
opportunity to perform routine make-ready work and we seek comment on 
whether such an exclusion is reasonable. We note that in crafting the 
pole attachment timeline adopted in 2011, the Commission sought to 
strike a balance between the goals of promoting broadband 
infrastructure deployment by new attachers and safeguarding the 
reliability of existing networks. We seek comment on the risks and 
drawbacks of any proposal that seeks to change that balance by letting 
new attachers conduct routine make-ready work without allowing existing 
attachers the opportunity to do so.
    19. We also recognize that a number of carriers have raised 
concerns about allowing new attachers to conduct routine make-ready 
work on equipment belonging to existing attachers. As AT&T pointed out 
in its challenge to Louisville's pole attachment ordinance, the 
movement and rearrangement of communications facilities has public 
safety implications; we thus seek comment on AT&T's claim that the 
``service provider whose pre-existing facilities are at issue plainly 
is in the best position to determine whether required make-ready work 
could be service-affecting or threaten the reliability of its 
network.'' Charter, in a separate challenge to Louisville's ordinance, 
argues that allowing competitors to perform make-ready work on its 
equipment could intentionally or unintentionally ``damage or disrupt 
[Charter]'s ability to serve its customers, creating an inaccurate 
perception in the market about [Charter]'s service quality and harming 
its goodwill.'' We seek comment on Charter's claim and whether make-
ready procedures that exclude existing attachers could lead to consumer 
misunderstandings in the event of service disruptions that occur during 
make-ready work by other attachers. Should new attachers that perform 
make-ready work be required to indemnify, defend, and hold harmless 
existing attachers for damages or outages that occur as a result of 
make-ready work on their equipment?
    20. Post Make-Ready Timeline. If existing attachers are not part of 
the make-ready process, then we seek

[[Page 22457]]

comment on an appropriate timeline for inspections and/or surveys by 
the existing attachers after the completion of make-ready work. For 
example, Nashville, Tennessee's pole attachment ordinance allows for a 
30-day timeline for the inspection and resolution of problems detected 
by existing attachers to the make-ready work done on their equipment. 
Is 30 days enough time to detect and rectify problems caused by 
improper make-ready work? Are there reasonable alternative time periods 
for existing attachers to review make-ready work and fix any detected 
problems? For example, the Louisville, Kentucky pole attachment 
ordinance allows for a 14-day inspection period. Further, is it 
reasonable to allow the existing attacher to elect to fix the defective 
make-ready work on its own (at the new attacher's expense) or to 
require the new attacher to fix the problems caused by its work?
    21. One-Touch, Make-Ready. We seek comment on the potential 
benefits and drawbacks of a pole attachment regime patterned on a 
``one-touch, make-ready'' (OTMR) approach, which includes several of 
the concepts discussed above as part of a larger pole attachment 
framework. Both Nashville, Tennessee and Louisville, Kentucky have 
adopted pole attachment regimes that involve elements of an OTMR 
policy. The Commission has noted that OTMR policies ``seek to alleviate 
`a significant source of costs and delay in building broadband 
networks' by `lower[ing] the cost of the make-ready process and 
speed[ing] it up.' '' Would a new pole attachment timeline patterned on 
an OTMR approach help spur positive decisions on broadband 
infrastructure deployment? According to the Fiber to the Home Council, 
an OTMR approach ``minimizes disruption in the public rights-of-way and 
protects public safety and aesthetics'' while also speeding broadband 
deployment. We seek other assessments and analysis of the benefits and 
drawbacks of an OTMR pole attachment process. Would some blend of an 
OTMR approach coupled with the current Commission pole attachment 
timeline and protections help spur timely access to poles?
    22. Under the Nashville OTMR ordinance, the pole attachment process 
works as follows: (1) A new attacher submits an attachment application 
to the utility and after approval of the application, the new attacher 
notifies the utility of the need for make-ready work; (2) the new 
attacher then contracts with a utility-approved contractor to perform 
all of the necessary make-ready work; (3) the new attacher gives 15 
days' prior written notice to existing attachers before initiating 
make-ready work; (4) within 30 days after the completion of make-ready, 
the new attacher sends written notice of the make-ready work to 
existing attachers; (5) upon receipt of such notice, the existing 
attachers may conduct a field inspection of the make-ready work within 
60 days; (6) if an existing attacher finds a problem with the make-
ready work, then it may notify the new attacher in writing (within the 
60-day inspection window) and elect to either fix the problem itself at 
the new attacher's expense or instruct the new attacher to fix the 
issue; and (7) if a new attachment involves ``complex'' make-ready 
work, then the new attacher must notify each existing attacher of the 
make-ready work at least 30 days before commencement of the work in 
order to allow the existing attachers the opportunity to rearrange 
their equipment to accommodate the new attacher--if such work is not 
performed by the existing attachers within 30 days, then the new 
attacher can perform the required make-ready work using utility-
approved contractors. We seek detailed comment on the benefits and 
drawbacks of this approach. Are there steps in the Nashville pole 
attachment process where utilities, new attachers, and existing 
attachers could all benefit from streamlined access to poles, 
especially as compared to the current Commission pole attachment 
timeline? Rather than adopting a wholesale OTMR approach to the pole 
attachment process, are there individual OTMR elements that could form 
the basis of a more preferable timeline than what currently exists in 
the Commission's rules?
    23. The Louisville OTMR ordinance differs from the one in Nashville 
in that it does not require new attachers to send pre-make-ready 
notices to existing attachers for routine requests, it shortens the 
timeline for the post-make-ready field inspection for routine make-
ready work from 60 days to 14 days, it requires existing attachers to 
notify the new attacher of any problems (and the election of how to fix 
those problems) within 7 days after the field inspection, and it 
requires new attachers to correct any problems within 30 days of the 
notice. We seek comment on the alternatives advanced in the Louisville 
OTMR ordinance and whether the Commission should incorporate any or all 
of these concepts into a new pole attachment regime. Does the 
Louisville ordinance better balance the concerns of existing attachers 
and utilities than the Nashville approach?
    24. In addition, CPS Energy, a utility based in San Antonio, Texas, 
has implemented an OTMR approach for access to its poles. Under the CPS 
Energy policy, the timeline for the pole attachment process is as 
follows: (1) 21 days for CPS Energy to review completed pole attachment 
applications (with a unilateral option for an additional 7 days), 
survey affected poles, and produce a make-ready cost estimate; (2) 21 
days for the new attacher to approve the make-ready cost estimate and 
provide payment; (3) CPS Energy notice to existing attachers of 
impending make-ready work; (4) 60 days for CPS Energy to complete any 
required make-ready work in the electrical space, and 90 days for the 
new attacher to complete all other routine make-ready work at its 
expense using contractors approved by CPS Energy (with option to 
request additional 30 days); (5) new attachers must give 3 days' notice 
to existing attachers of impending make-ready work and must specify 
whether the work is complex, such that it ``poses a risk of 
disconnection or interruption of service to a Critical Communications 
Facility'' (any complex make-ready work must be completed by the new 
attacher within 30 days after notice is provided to affected existing 
attachers); (6) 15 days' notice from new attachers to affected existing 
attachers after completion of make-ready work; (7) 15 days for existing 
attachers to inspect make-ready work on their equipment; and (8) 15 
days for new attachers to fix any problems after notice from existing 
attachers. We seek comment on this approach, which varies from the 
ordinances adopted in Nashville and Louisville, especially in terms of 
the timing of the various pole attachment stages and the ability of new 
attachers to perform complex make-ready work themselves. What are the 
benefits and drawbacks of the process adopted by CPS Energy? Is it 
significant that this process is a utility-adopted approach as opposed 
to a government-adopted approach? What can the Commission do to 
encourage other utilities to adopt pole attachment policies like the 
one instituted by CPS Energy?
    25. Other Pole Attachment Process Proposals. Another pole 
attachment proposal, advanced by members of the Nashville City Council 
who opposed the OTMR ordinance, is styled ``right-touch, make-ready'' 
(RTMR), and it would provide a utility 30 days in which to review a 
pole attachment application, then provide existing attachers 45 days to 
complete make-ready work. Existing attachers failing to meet the 45-day 
deadline would be charged $500 per pole per month until required make-
ready work is completed. We seek comment on the reasonableness of this

[[Page 22458]]

approach. What are the advantages and drawbacks of a RTMR approach as 
opposed to an OTMR approach? Could elements of both approaches be 
blended together to form a better alternative to the Commission's 
current pole attachment timeline? Would the $500 per pole per month 
charge be enough of an incentive to encourage existing attachers to 
complete make-ready work by the 45-day deadline? Would it be reasonable 
to include in a RTMR approach the ability of new attachers (or the 
utility) to perform make-ready work at the expense of existing 
attachers who fail to meet the 45-day deadline?
    26. As another way to incent accelerated make-ready timelines, 
could there be a standard ``bonus'' payment or multiplier applied to 
the make-ready reimbursements sought by existing attachers from new 
attachers if the overall timelines are met? By basing such incentive 
payments on the overall timeline being achieved by existing attachers, 
does this create effective incentives for parties to collaborate and 
find opportunities for efficiency? For instance, might multiple 
existing attachers agree to use the same make-ready contractor so they 
all can reap the reward of the incentive payments? While such 
incentives could theoretically be arranged through private contracting, 
would using this as the default system benefit smaller, new attachers 
who may find complicated negotiations a challenge?
    27. Making more information publicly available regarding the rates, 
location, and availability of poles also could lead to faster pole 
attachment timelines. We seek comment on the types of pole attachment 
data resources currently available. Are there ways the Commission could 
incentivize utilities to establish online databases, maps, or other 
public information sources regarding pole rates, locations, and 
availability? To what extent are utilities or other entities already 
aggregating pole information online, either for internal tracking 
purposes or externally for potential or existing attachers? What pole-
related information other than rates, location, and availability could 
utilities make publicly available (e.g., number of existing attachers, 
physical condition, available communications space, the status of make-
ready work, status of pole engineering surveys)? Should similar 
information also be made publicly available for ducts, conduits, and 
rights-of-way? We recognize that increasing transparency of cost 
information could lead to more efficient pole attachment negotiations. 
What steps should the Commission take to facilitate access to 
information regarding pole attachment rates and costs from pole owners 
subject to section 224? For instance, should pole owners be required to 
make pole attachment rates publicly available online? What are the 
benefits and drawbacks of making pole attachment rate information 
publicly available? Could the Commission facilitate the creation of a 
centralized clearinghouse of pole attachment rate information, and if 
so how?
    28. We seek comment on these proposals and any others (or 
combinations thereof) that could help speed the pole attachment 
process, yet still address the safety and property concerns of existing 
attachers and utilities. Might there be ``hybrid'' approaches that 
incent parties to expeditiously complete the make-ready process when 
private negotiations fail within a given time period? For instance, if 
utilities, existing attachers, and new attachers cannot agree on make-
ready plans within 15 days, could the following arrangement be used: 
First, the new attacher would select a ``default'' contractor (approved 
by the utility); second, the existing attachers would be able to accept 
the default contractor or do the make-ready work themselves (and be 
reimbursed by the new attacher) within a specified timeframe with 
penalties for failure to meet the make-ready deadline? If having a 
single default contractor do all the work at once will speed 
deployment, are there ways within this framework to incent existing 
attachers to allow the new attacher to use the default contractor? For 
instance, might existing attachers choosing to do make-ready work 
themselves be limited in the amount they charge for the work? Could 
such a limit be set as a proportional split among existing attachers 
that is based on the total make-ready costs that the new attacher would 
have incurred under an OTMR approach? Would such incentives encourage 
existing attachers to choose the default contractor in situations where 
they have little concern about harm to their equipment but still allow 
them to do the work themselves when they have concerns?
    29. We seek discussions of the relative merits and drawbacks of 
these pole attachment approaches or combinations thereof. For example, 
would an OTMR approach (or some variant thereof) benefit consumers 
through increased efficiencies that could lower the costs of 
deployment? Is there any evidence to show how much less pole attachment 
costs are if using an OTMR approach as compared with the Commission's 
current pole attachment timeline? How should we balance the benefits to 
society from greater speed of deployment and cost savings versus the 
need to ensure that safety and property concerns are not compromised?
    30. We also recognize that some broadband providers encounter 
difficulties in accessing poles, ducts, conduits, and rights-of-way 
owned by entities that are not subject to section 224 of the 
Communications Act, such as municipalities, electric cooperatives, and 
railroads. ACA members also submit that there are instances where 
accessing infrastructure owned by municipalities, electric 
cooperatives, and railroads is cost prohibitive due to the pole 
attachment rates charged. We seek comment on actions that the 
Commission might be able to undertake to speed deployment of next 
generation networks by facilitating access to infrastructure owned by 
entities not subject to section 224. How can the Commission encourage 
or facilitate access to information about pole attachment rates and 
costs with respect to these entities, and what are the benefits and 
drawbacks of these potential steps? Would increased transparency 
regarding pole attachment rates and costs for Commission-regulated pole 
owners, discussed above, benefit potential attachers to non-Commission-
regulated poles by providing data that would be useful in contractual 
negotiations? If so, would this facilitate broadband deployment?
    31. Access to Conduit. We seek comment on ways to make the process 
of gaining access specifically to utility conduit more transparent. We 
ask whether there are existing online databases or other publicly-
available resources to aid telecommunications and cable providers in 
determining where available conduit exists. Do utilities or 
municipalities have readily available information on the location and 
cost of access to conduit? Are there ``best practices'' that utilities 
or municipalities have established that make it easier for providers to 
obtain crucial information on conduit access? We seek comment on 
whether any local or state jurisdictions have policies on making 
conduit information more transparent and widely available, especially 
with regard to alerting the public and providers about the timing and 
location of conduit trenches being dug by utilities.

B. Re-Examining Rates for Make-Ready Work and Pole Attachments

1. Reasonableness of ``Make-Ready'' Costs
    32. We seek comment on proposals to reduce make-ready costs and to 
make

[[Page 22459]]

such costs more transparent. In general, make-ready charges must be 
just and reasonable under section 224(b)(1) of the Act. Currently, 
however, make-ready fees are not subject to any mandatory rate formula 
set by the Commission. We seek comment on whether the make-ready costs 
being charged today are just and reasonable, and whether such costs 
represent a barrier to broadband infrastructure deployment. Further, we 
seek comment on ways to encourage utilities, existing attachers, and 
new attachers to resolve more make-ready pole attachment cost and 
responsibility issues through private negotiations.
    33. Requiring Utilities to Make Available Schedules of Common Make-
Ready Charges. We seek comment on whether we should require utilities 
to provide potential new attachers with a schedule of common make-ready 
charges to create greater transparency for make-ready costs. To what 
extent does the availability of schedules of common make-ready charges 
help facilitate broadband infrastructure deployment? INCOMPAS suggests 
that the Commission should revisit its 2011 decision refraining from 
requiring utilities to provide schedules of common make-ready charges 
upon request. According to INCOMPAS, ``make ready charges are not 
predictable or verifiable in many cases, making it difficult for 
competitors to plan their builds and accurately predict construction.'' 
We seek comment on the benefits and any potential burdens associated 
with requiring utilities to provide schedules of make-ready charges.
    34. Further, we seek comment on whether and how schedules of common 
make-ready charges are made available, used, and implemented by both 
utilities and potential new attachers today. In the 2011 Pole 
Attachment Order, the Commission received evidence from utilities that 
many already make information about common make-ready charges available 
on request. Is that practice still prevalent today and, if so, what 
methods are most frequently used to provide such schedules (e.g., Web 
sites, paper schedules, telephonically)? We also seek comment on which 
make-ready jobs and charges are the most common, and thus most easily 
included in a generalized schedule of charges. In addition, we seek 
comment on any comparable state requirements that require utilities to 
publish or make available schedules of common make-ready charges. We 
also seek comment on whether there are other mechanisms currently in 
use, such as standardized contract terms, that provide the necessary 
information and transparency to the make-ready process.
    35. Reducing Make-Ready Charges. We seek comment on reasonable ways 
to limit the make-ready fees charged by utilities to new attachers. 
Would it provide certainty to the make-ready process if the Commission 
adopted a rule limiting make-ready fees imposed on new attachers to the 
actual costs incurred to accommodate a new attachment? As part of the 
pole attachment complaint process, the Commission has held that 
utilities ``are entitled to recover their costs from attachers for 
reasonable make-ready work necessitated by requests for attachment. 
Utilities are not entitled to collect money from attachers for 
unnecessary, duplicative, or defective make-ready work.'' Would 
codifying the holding that new attachers are responsible only for the 
cost of make-ready work made necessary because of their attachments 
help to ensure that make-ready costs are just and reasonable?
    36. We also seek comment on other alternatives for reducing make-
ready costs. For example, would it be reasonable to allow utilities to 
set a standard charge per pole that a new attacher may choose in lieu 
of a cost-allocated charge? Should the choice belong to the utility or 
the new attacher? Would a per-pole charge of, for example, $300, $400, 
or $500 permit utilities to recover their reasonable make-ready costs 
and provide new attachers with an affordable alternative to negotiating 
with the utility over the applicable costs to be included in make-ready 
charges? We seek comment on the viability of such an approach. We also 
ask whether it would be reasonable to require utilities to reimburse 
new attachers for make-ready costs for improvements that subsequently 
benefit the utility (e.g., the modification allows utilities to use 
additional space on a pole for its own uses or creates a vehicle for 
the utility to receive additional revenues from subsequent attachers). 
If so, then how would the new attachers and utilities manage that 
process? We seek comment on the potential tradeoffs of such an 
approach, which may help to keep make-ready costs low for new 
attachers, but also pose new challenges for utilities and new attachers 
to administer. We note that pursuant to section 1.1416(b) of the 
Commission's rules, attachers who directly benefit from a new pole or 
attachment already are required to proportionately share in the costs 
of that pole or attachment. The proportionate share of the costs 
attributable to the subsequent attacher is reduced to take into account 
depreciation to the pole that occurs after the modification. In 
adopting this requirement, the Commission ``intended to ensure that new 
entrants, especially small entities with limited resources, bear only 
their proportionate costs and are not forced to subsidize their later-
entering competitors.'' Should we interpret (or modify) this rule to 
apply to utilities when make-ready improvements subsequently benefit 
the utility? Conversely, we seek comment on whether requiring utilities 
to pass a percentage of additional attachment benefits back to parties 
with existing attachments would result in a disincentive to add new 
competitors to modified poles.
    37. We also seek comment on whether the Commission's complaint 
process provides a sufficient mechanism by which to ensure that make-
ready costs are just and reasonable. Commenters arguing that the 
Commission's complaint process is not a sufficient limitation on make-
ready costs should propose specific alternatives to ensure the 
reasonableness of make-ready charges and explain why the benefits of 
such alternatives would outweigh the burdens of a new Commission-
imposed mandate for make-ready charges. Are there state regulatory 
approaches or alternatives governing the reasonableness of make-ready 
charges that the Commission should consider implementing?
2. Excluding Capital Expenses From Pole Attachment Rates
    38. Capital Expenses Recovered via Make-Ready Fees. We propose to 
codify a rule that excludes capital costs that utilities already 
recover via make-ready fees from pole attachment rates. Almost forty 
years ago, the Commission found that ``where a utility has been 
directly reimbursed by a [cable television] operator for non-recurring 
costs, including plant, such costs must be subtracted from the 
utility's corresponding pole line capital account to insure that [cable 
television] operators are not charged twice for the same costs.'' Since 
that time, the Commission has made clear that ``[m]ake-ready costs are 
non-recurring costs for which the utility is directly compensated and 
as such are excluded from expenses used in the rate calculation.'' As 
such, ``if a utility is required to replace a pole in order to provide 
space for an attacher [and] the attacher pays the full cost of the 
replacement pole,'' the capital expenses associated with the 
installation of those poles should be wholly excluded from pole 
attachment rates for all attachers. Nonetheless, it appears that not 
all

[[Page 22460]]

attachers benefit from lower rates in these circumstances, in part 
because our rules do not explicitly require utilities to exclude 
already-reimbursed capital costs from their pole attachment rates. We 
seek comment on how utilities recalculate rates when make-ready pays 
for a new pole, what rate reductions pole attachers have experienced 
when poles are replaced through the make-ready process, and whether 
attachers have experienced the inclusion of already-reimbursed capital 
costs in their pole attachment rates. We similarly seek comment on how 
utilities treat capital expenses associated with their own make-ready 
work. When utilities replace poles to accommodate their own needs or to 
create additional electrical space, do they appropriately treat 
associated capital expenses as make-ready work that is wholly excluded 
from pole attachment rates? How do existing attachers know when new 
attachers or the utility have fully paid the capital expenses as make-
ready costs so that those expenses should be wholly excluded from rates 
going forward?
    39. We seek comment on whether amending section 1.1409(c) of our 
rules to exclude capital expenses already recovered via make-ready fees 
from ``actual capital costs'' is sufficient to ensure no double 
recovery occurs by utilities. We seek comment on whether any other 
changes to the Commission's rules are necessary and reasonable to 
provide certainty to attachers and utilities about the treatment of 
pole capital costs that already have been recovered via make-ready.
    40. Capital Costs Not Otherwise Recovered Via Make-Ready Fees. We 
seek comment on whether we should exclude capital costs that are not 
otherwise recoverable through make-ready fees from the upper-bound 
cable and telecommunications pole attachment rates. In setting those 
rates, the Commission previously found it appropriate to allow 
utilities to include in the rates some contribution to capital costs 
aside from those recovered through make-ready fees. In revisiting this 
issue, we seek comment on the extent to which the capital costs of a 
pole, other than those paid through make-ready fees, are caused by 
attachers other than the utility (especially when there is space 
already available on the pole). If none or only a small fraction of the 
capital costs, other than those paid for through make-ready fees, are 
caused by attachers other than the utility, would this justify the 
complete exclusion of these capital costs from the pole attachment 
rate? To what extent would the exclusion of such capital costs further 
reduce pole attachment rates? To what extent would the exclusion of 
these particular capital costs from the rate formulas burden the 
ratepayers of electric utilities? What policy justifies charging pole 
attachers, whose costs of deployment may determine the scope of their 
investment in infrastructure, anything more than the incremental costs 
of attachment to utilities?
    41. We note that although the rate formula for operators ``solely'' 
providing cable service sets an upper bound explicitly tied to ``actual 
capital costs,'' the rate formula for telecommunications carriers is 
tied only to ``costs.'' The Commission has previously interpreted the 
term ``cost'' in the latter formula to exclude at least some capital 
costs. Should we revisit this interpretation and interpret the term 
``cost'' in the telecommunications pole attachment formula to exclude 
all capital costs? Would doing so avoid the awkward interpretation 
contained in our present rules that defines the term ``cost'' in two 
separate different ways at the same time?
    42. Similarly, we note that our more general authority over pole 
attachments only requires that rates be ``just and reasonable.'' We 
seek comment on the appropriate rate for commingled services, including 
when a cable operator or a telecommunications carrier offers 
information services as well as cable or telecommunications services 
over a single attachment. Should we set that rate for commingled 
services based on the upper bound of the cable rate formula, the 
telecommunications rate formula, or some third option? Should we 
exclude capital costs from the rate formula we use to determine the 
commingled services rate? The cable rate formula also sets a lower 
bound of ``the additional costs of providing pole attachments.'' How 
would that differ from any of the rates discussed heretofore? Should we 
set the commingled services rate equal to the lower bound of the cable 
rate formula?
    43. We seek comment on what specific amendments we should consider 
to section 1.1409 of our rules to effectuate any changes.
3. Pole Attachment Rates for Incumbent LECs
    44. In the 2011 Pole Attachment Order, the Commission declined to 
adopt a pole attachment rate formula for incumbent LECs, opting instead 
to evaluate incumbent LEC complaints on a case-by-case basis to 
determine whether the rates, terms, and conditions imposed on incumbent 
LEC pole attachments are consistent with section 224(b) of the Act. The 
Commission held that it is ``appropriate to use the rate of the 
comparable attacher as the just and reasonable rate for purposes of 
section 224(b)'' when an incumbent LEC enters into a new agreement with 
a utility and can demonstrate ``that it is obtaining pole attachments 
on terms and conditions that leave them comparably situated to 
telecommunications carriers or cable operators.'' Conversely, when the 
incumbent LEC attacher cannot make such a demonstration, the Commission 
found that a higher rate based on the Commission's pre-2011 
telecommunications rate formula should serve as a ``reference point'' 
for evaluating whether pole attachment rates charged to incumbent LECs 
are just and reasonable. In the years since adoption, this formulation 
has led to repeated disputes between incumbent LECs and utilities over 
appropriate pole attachment rates.
    45. To end this controversy, we propose that the ``just and 
reasonable rate'' under section 224(b) for incumbent LEC attachers 
should presumptively be the same rate paid by other telecommunications 
attachers, i.e., a rate calculated using the most recent 
telecommunications rate formula. Under this approach, the incumbent LEC 
would no longer be required to demonstrate it is ``comparably 
situated'' to a telecommunications provider or a cable operator; 
instead the incumbent LEC would receive the telecommunications rate 
unless the utility pole owner can demonstrate with clear and convincing 
evidence that the benefits to the incumbent LEC far outstrip the 
benefits accorded to other pole attachers. We seek comment on this 
proposal. What demonstration should be sufficient to show that an 
incumbent LEC attacher should not be entitled to the telecommunications 
rate formula? For instance, should an incumbent LEC have to own a 
majority of poles in a joint ownership network? Should an incumbent LEC 
have to have special access to modify a utility's poles without prior 
notification? How should the relative rates charged to the utility and 
the incumbent LEC factor into the analysis? If an incumbent LEC has 
attachments on utility poles pursuant to the terms of a joint use 
agreement, should the incumbent LEC entitlement to the 
telecommunications rate be conditioned on making commensurate 
reductions in the rates charged to the utility for attaching to the 
incumbent LEC's poles? We also seek comment on the rate that should 
apply to incumbent LECs in the event the utility owner can demonstrate 
the telecommunications

[[Page 22461]]

rate should not apply. In these instances, should the Commission use 
the pre-2011 telecommunications rate formula? We also seek comment on 
an alternative pole attachment rate formula approaches for incumbent 
LECs. Commenters supporting alternative approaches should provide 
specific inputs and methodology that could be used in such a formula.
    46. Given that the Commission based its decision in the 2011 Pole 
Attachment Order to refrain from establishing pole attachment rates for 
incumbent LECs in part on the high levels of incumbent LEC pole 
ownership, we seek comment on the relative levels of pole ownership 
between utilities, incumbent LECs, and other industry participants. If 
pole ownership levels have changed, what bearing should that have on 
the rates charge to incumbent LECs?

C. Pole Attachment ``Shot Clock'' For Pole Attachment Complaints

    47. Establishing a 180-Day Shot Clock. We propose to establish a 
180-day ``shot clock'' for Enforcement Bureau resolution of pole access 
complaints filed under section 1.1409 of our rules. A ``pole access 
complaint'' is a complaint that alleges a complete denial of access to 
utility poles. This term does not encompass a complaint alleging that 
unreasonable rates, terms, or conditions that the utility demands as a 
condition of attachment (e.g., adherence to certain engineering 
standards) amounts to a denial of pole access. We seek comment on this 
proposal. The 2011 Pole Attachment Order noted that ``a number of 
commenters expressed concern about the length of time it takes for the 
Commission to resolve pole attachment complaints,'' but the Commission 
determined that the record at the time did not warrant the creation of 
new pole attachment complaint rules. We now seek comment on whether we 
should revisit that earlier conclusion by creating a shot clock and 
whether 180 days is a reasonable timeframe for the Enforcement Bureau 
to resolve pole access complaints. We note that under section 
224(c)(3)(B) of the Act, a state that has asserted jurisdiction over 
the rates, terms, and conditions of pole attachments could lose the 
ability to resolve a pole attachment complaint if it does not take 
final action within 180 days after the complaint is filed with the 
state. Should this statutory time period for state resolution of a pole 
attachment complaint inform our consideration as to what constitutes a 
reasonable timeframe for Enforcement Bureau consideration of a pole 
attachment complaint? We additionally seek alternatives to the 180-day 
time period. For example, are there shorter state timelines for the 
resolution of pole attachment complaints? Would 150 days, 120 days, 90 
days, or an even shorter timeframe be reasonable for the Enforcement 
Bureau to resolve a pole access complaint? What would be the benefits 
and drawbacks for a shorter timeframe for resolution of pole access 
complaints? Also, we seek comment regarding whether the current length 
of Enforcement Bureau consideration of pole access complaints has 
burdened broadband infrastructure deployment. How, if at all, would a 
shot clock (whether it be 180 days or some different time period) 
affect new attacher decisions to deploy broadband infrastructure? We 
seek comment on the ramifications of the Enforcement Bureau exceeding 
the shot clock and on reasonable consequences for the Enforcement 
Bureau exceeding the clock.
    48. Starting the Shot Clock at the Time a Complaint Is Filed. We 
seek comment on when to start the proposed 180-day shot clock. We 
propose starting the shot clock at the time the pole access complaint 
is filed, as is the case for state complaints under section 
224(c)(3)(B) of the Act, and we seek comment on this proposal. We also 
seek comment on alternatives that would start the shot clock later in 
the process, such as when a reply is filed by the complainant pursuant 
to section 1.1407(a) of our rules or, if discovery is requested, when 
discovery is complete. Starting the clock at these later junctures 
would allow the Enforcement Bureau sufficient time to review the 
relevant issues involved in a pole access complaint and would not 
disadvantage the timing of the Enforcement Bureau's review if the 
pleading cycle or discovery takes longer than expected. Are there 
instructive alternative starting points adopted by states for the 
initiation of their pole attachment complaint proceedings? If the shot 
clock does not start until sometime after a pole access complaint is 
filed, would it make sense to institute a shot clock that is shorter 
than 180 days?
    49. Pausing the Shot Clock. We seek comment on whether the 
Enforcement Bureau should be able to pause the proposed shot clock for 
a reasonable time in situations where actions outside the Enforcement 
Bureau's control are responsible for delaying its review of a pole 
access complaint. In the transactions context, the reviewing Bureau 
pauses the shot clock when the parties need additional time to provide 
key information requested by the Bureau. We propose to allow the 
Enforcement Bureau the discretion to pause the shot clock in that 
situation, as well as when the parties decide to pursue informal 
dispute resolution or request a delay to pursue settlement discussions 
after a pole access complaint is filed. We ask whether these are valid 
reasons to pause the shot clock, and we seek comment on objective 
criteria for the Enforcement Bureau to use in deciding whether such 
situations are significant enough to warrant a pause in the shot clock. 
We also seek comment on when the Enforcement Bureau should resume the 
shot clock. Are there objective criteria that the Enforcement Bureau 
could use to judge the satisfactory resolution of an outstanding issue 
such that the shot clock could be resumed? Further, we propose to alert 
parties to a pause in the shot clock (and to a resumption of the shot 
clock) via written notice to the parties. We seek comment on this 
proposal.
    50. Establishment of Pre-Complaint Procedures. We seek comment on 
whether we should require the parties to resolve procedural issues and 
deadlines in a meeting to be held either remotely or in person prior to 
the filing of the pole access complaint (and prior to the starting of 
the shot clock). We seek comment on the types of issues that the 
parties should resolve in a pre-complaint meeting. We note that it has 
been our standard practice to request that parties participate in pre-
complaint meetings in order to resolve procedural issues and deadlines; 
we find that the complaint process has proceeded much more smoothly as 
a result. We seek comment on the benefits and drawbacks of requiring a 
pre-complaint meeting and ask whether there are any state pre-complaint 
procedures that could inform the rules that we develop.
    51. Use of Shot Clock for Other Pole Attachment Complaints. We seek 
comment on whether the Commission should adopt a 180-day shot clock for 
pole attachment complaints other than those relating to access. We also 
request comment on whether the length of time to resolve other pole 
attachment complaints has stymied the deployment of broadband 
infrastructure. We additionally seek comment on reasonable alternatives 
to a 180-day shot clock and ask whether there are state shot clocks for 
other pole attachment complaints that could help inform our review. 
Should the procedures set forth above for pole access complaints also 
apply to other pole attachment complaints? What alternatives could we 
adopt that would further streamline the pole attachment complaint 
process?

[[Page 22462]]

D. Reciprocal Access to Poles Pursuant to Section 251

    52. Background. Section 251 of the Act provides that ``[e]ach local 
exchange carrier'' has the duty ``to afford access to the poles, ducts, 
conduits, and rights-of-way of such carrier to competing providers of 
telecommunications services on rates, terms, and conditions that are 
consistent with section 224 [of this Act].'' Section 224(a) defines a 
``utility'' that must provide telecommunications carriers 
nondiscriminatory pole access at regulated rates to include both 
incumbent LECs and competitive LECs. However, the definition of 
``telecommunications carrier'' used in section 224 ``does not include'' 
incumbent LECs, thus denying incumbent LECs the benefits of section 
224's specific protections for carriers.
    53. According to CenturyLink, the disparate treatment of incumbent 
LECs and competitive LECs in section 224(a) prevents incumbent LECs 
from gaining access to competitive LEC-controlled infrastructure and in 
doing so dampens the incentives for all local exchange carriers to 
build and deploy the infrastructure necessary for advanced services. 
The Commission initially examined this issue during its implementation 
of the 1996 Act in the 1996 Local Competition Order, where it 
determined that section 251 cannot ``[restore] to an incumbent LEC 
access rights expressly withheld by section 224.'' The Ninth Circuit 
Court of Appeals disagreed in dicta, noting that sections 224 and 251 
could ``be read in harmony'' to support a right of access for incumbent 
LECs on other LEC poles. Despite its skepticism of the Commission's 
analysis in the 1996 Local Competition Order, the Ninth Circuit held it 
was obligated to adhere to that analysis because the parties had not 
directly challenged the 1996 Local Competition Order via the Hobbs Act. 
CenturyLink requests the Commission revisit our interpretation. Other 
commenters in the latest Biennial Review contend that the Commission's 
interpretation remains valid given incumbent LECs' ``first-mover 
advantage'' and ``the ability of large incumbent LECs to abuse their 
market positions to foreclose competition.''
    54. Discussion. We seek comment on reading the statutes in harmony 
to create a reciprocal system of infrastructure access rules in which 
incumbent LECs, pursuant to section 251(b)(4) of the Act, could demand 
access to competitive LEC poles and vice versa, subject to the rates, 
terms, and conditions described in section 224. Further, we seek 
comment on necessary amendments to our rules to effectuate the changed 
interpretation in the event we decide to do so. We also seek comment on 
how similar the rules for incumbent LEC access under section 251 must 
be to those for other carriers under section 224 for the rules to be 
``consistent'' with each other.
    55. Additionally, we seek comments and data that will help 
establish how often incumbent LECs request access to competitive LEC 
infrastructure. How often do incumbent LECs request access to 
infrastructure controlled by competitive LECs, how frequently are 
incumbent LECs denied access, and how much of an effect does this have 
on competition and broadband deployment? Would the frequency of 
incumbent LEC requests for access to competitive LEC poles change if we 
decide to change our interpretation, and how would that impact 
broadband deployment?

III. Expediting the Copper Retirement and Network Change Notification 
Process

    56. Section 251 of the Act imposes specific obligations on 
incumbent LECs to promote competition so as to allow industry to bring 
``increased innovation to American consumers.'' To that end, section 
251(c)(5) and the Commission's part 51 implementing rules require 
incumbent LECs to provide public notice of network changes, including 
copper retirement, that would affect a competing carrier's performance 
or ability to provide service. We propose revisions to our Part 51 
network change disclosure rules to allow providers greater flexibility 
in the copper retirement process and to reduce associated regulatory 
burdens, to facilitate more rapid deployment of next-generation 
networks. We also seek comment on streamlining and/or eliminating 
provisions of the more generally applicable network change notification 
rules.

A. Copper Retirement

    57. We seek comment on revisiting our copper retirement and notice 
of network change requirements to reduce regulatory barriers to the 
deployment of next-generation networks. First, we seek comment on 
eliminating some or all of the changes to the copper retirement process 
adopted by the Commission in the 2015 Technology Transitions Order. We 
seek comment on the Commission's authority to impose the copper 
retirement notice requirements adopted in the 2015 Technology 
Transitions Order. Among other things, the new rules doubled the time 
period during which an incumbent LEC must wait to implement a planned 
copper retirement after the Commission's release of public notice from 
90 days to 180 days, required direct notice to retail customers, 
states, Tribal entities, and the Secretary of Defense, and expanded the 
types of information that must be disclosed.
    58. Repeal of Section 51.332 and Return to Prior Short-Term Network 
Change Notification Rule. We seek comment on how best to handle 
incumbent LEC copper retirements going forward to prevent unnecessary 
delay and capital expenditures on this legacy technology while 
protecting consumers. First, we seek comment on eliminating section 
51.332 entirely and returning to a more streamlined version of the pre-
2015 Technology Transitions Order requirements for handling copper 
retirements subject to section 251(c)(5) of the Act. Specifically, 
prior to the 2015 Technology Transitions Order, incumbent LEC copper 
retirement notices of less than six months were regulated under the 
more flexible Commission rule that applied to short-term network change 
notices. We seek comment on whether to repeal section 51.332 and 
whether to reinstate the prior copper retirement notice rules. Have the 
delays and increased burdens introduced by the revised rules hindered 
next-generation network investment? Have the changes been effective in 
protecting competition and consumers? What are their costs and 
benefits? Would adopting our pre-2015 rule, without modification, 
provide incumbent LECs with sufficient flexibility to facilitate their 
transition to next-generation networks? Should we retain our existing 
rule in substantially similar format?
    59. The 2015 Technology Transitions Order eliminated the process by 
which competitive LECs can object to and seek to delay an incumbent 
LEC's planned copper retirement when it increased the ``deemed 
approved'' timeframe from 90 to 180 days. If we return incumbent LEC 
copper retirements to the prior network notification process, should we 
nonetheless retain this change, and, if so, how should we incorporate 
it into our rules? Is some other notice timeframe more appropriate?
    60. The 2015 Technology Transitions Order also adopted an expanded 
definition of copper retirement that added (1) the feeder portion of 
copper loops and subloops, previously excluded, and (2) ``the failure 
to maintain copper loops, subloops, or the feeder portion of such loops 
or subloops that is the functional equivalent of removal or 
disabling''--i.e., de facto

[[Page 22463]]

retirement. Maintenance of existing copper facilities remains a concern 
when an incumbent LEC does not go through the copper retirement 
process. If we return incumbent LEC copper retirements to the prior 
network notification process, should we nonetheless retain this 
expanded definition?
    61. The 2015 Technology Transitions Order also broadened the 
recipients of direct notice from ``each telephone exchange service 
provider that directly interconnects with the incumbent LEC's network'' 
to ``each entity within the affected service area that directly 
interconnects with the incumbent LEC's network.'' It also added a 
notice requirement to the Secretary of Defense as well as the state 
public utility commission, Governor of the State, and any Tribal entity 
with authority over Tribal lands in which the copper retirement is 
proposed. Have these direct notice changes adopted by the Commission 
meaningfully promoted facilities investment or preserved competition in 
the provision of next-generation facilities, and what costs have the 
changes imposed? Have these direct notice changes meaningfully promoted 
understanding and awareness of copper retirements and their impacts, 
and what have been the benefits of these changes? Returning to a 
version of our pre-2015 copper retirement rules would reduce the number 
of direct notice recipients from ``each entity'' to ``each telephone 
exchange service provider,'' and eliminate the other expanded notice 
requirements from the 2015 Technology Transitions Order. We seek 
comments on the effects of such a change.
    62. Full Harmonization with General Network Change Notification 
Process. Alternatively, we seek comment on eliminating all differences 
between copper retirement and other network change notice requirements, 
rendering copper retirement changes subject to the same long-term or, 
where applicable, short-term network change notice requirements as all 
other types of network changes subject to section 251(c)(5). Even under 
the Commission's rules prior to the 2015 Technology Transitions Order, 
there were differences in the treatment of copper retirements and other 
short-term network change notices. Whereas short-term network change 
notices become effective ten days after Commission issuance of a public 
notice, copper retirement notices became effective ninety days 
thereafter. Moreover, an objection to a copper retirement notice was 
deemed denied 90 days after the Commission's public notice absent 
Commission action on the objection, while there is no ``deemed denied'' 
provision for other short-term network change objections. Is there a 
basis to continue to have a different set of network change 
requirements for copper retirement? In this regard, we note that the 
transition from copper to fiber has been occurring for well more than a 
decade now. We anticipate that interconnecting carriers are aware that 
copper retirements are inevitable and that they should be familiar by 
now with the implications of and processes involved in accommodating 
such changes. We seek comment on this expectation.
    63. Modification of section 51.332. A second alternative to 
eliminating section 51.332 entirely would be to retain but amend 
section 51.332 to streamline the process, provide greater flexibility, 
and reduce burdensome requirements for incumbent LEC copper 
retirements. We seek comment on how we should change the rule to afford 
flexibility and maximize incentives to deploy next-generation 
facilities. We seek comment on whether we should adopt these changes, 
and whether additional or different changes should also be adopted:
     Requiring an incumbent LEC to serve its notice only to 
telephone exchange service providers that directly interconnect with 
the incumbent LEC's network, as was the case under the predecessor 
rules, rather than ``each entity within the affected service area that 
directly interconnects with the incumbent LEC's network.''
     Reducing the waiting period to 90 days from 180 days after 
the Commission releases its public notice before the incumbent LEC may 
implement the planned copper retirement.
     Providing greater flexibility regarding the time in which 
an incumbent LEC must file the requisite certification.
     Reducing the waiting period to 30 days where the copper 
facilities being retired are no longer being used to serve any 
customers in the affected service area.
    Should we adopt different timing thresholds than those specified 
above, and if so, what thresholds and why would different thresholds be 
better? Should we reduce the waiting period to one month and remove the 
notification requirements in emergency situations? Should we modify the 
existing requirements for the content of the notice, and if so, how? 
Have competitive LECs availed themselves of the good faith 
communication requirement, and if so, has that requirement caused any 
difficulties? If we eliminate the good faith communication requirement, 
should we include an objection period, and what form should it take? 
Alternatively, should we retain the good faith communication 
requirement and not include an objection period?
    64. If we modify section 51.332, we seek comment on eliminating the 
requirement that incumbent LECs provide direct notice of planned copper 
retirements to retail customers, both residential and non-residential. 
Specifically, we seek comment on eliminating sections 51.332(b)(3), 
(c)(2), (d)(6)-(8), and (e)(3)-(4). What would be the likely impact of 
eliminating such notice to consumers, including consumers who have 
disabilities and senior citizens? How do the benefits of notification 
compare with the costs in terms of slower transitions to next-
generation networks? Are there alternative ways in which the Commission 
can streamline these retail customer notice rules to make the process 
more flexible and less burdensome on carriers retiring their copper, 
while still ensuring consumers are protected? Finally, how, if at all, 
should we modify the requirements for providing notice under current 
section 51.332(b)(4) to the states, Tribal entities, and the Secretary 
of Defense?
    65. Additional Considerations. We seek comment on additional 
methods by which we can provide further flexibility in the copper 
retirement process in conjunction with or separate from the proposals 
described above while still affording interconnecting entities and 
other impacted parties the notice they need. For instance, should the 
Commission consider an even shorter waiting period in certain 
circumstances, and if so, in what circumstances and how much shorter? 
How, if at all, should that affect the timing for filing the required 
certification? Are there any other measures we could take to make the 
copper retirement process less burdensome on carriers? Are there any 
other measures we could take to make the copper retirement process more 
helpful for consumers and other impacted parties? Are any technical 
changes to our rules necessary to accommodate reforming the copper 
retirement process? For example, should we revise section 51.329(c)(1) 
to eliminate the titles specific to copper retirement notices, if there 
would no longer be a defined term?

B. Network Change Notifications Generally

    66. Next, we seek comment on methods to reduce the burden of our 
network change notification processes generally. The Commission's 
network

[[Page 22464]]

change notification process is the process by which incumbent LECs 
provide ``reasonable public notice of changes in the information 
necessary for the transmission and routing of services using that local 
exchange carrier's facilities or networks, as well as of any other 
changes that would affect the interoperability of those facilities and 
networks.'' Aside from the copper retirement notice expansions adopted 
by the 2015 Technology Transitions Order, we last revisited our general 
section 251(c)(5) rules in 2004. Do changes to the telecommunications 
marketplace since that time warrant changes to these rules, more 
generally, and if so, what changes? We seek comment on two specific 
changes below and invite commenters to identify other possible reforms 
to our network change notification processes.
    67. Section 51.325(c). We specifically propose eliminating section 
51.325(c) of our rules, which prohibits incumbent LECs from disclosing 
any information about planned network changes to affiliated or 
unaffiliated entities prior to providing public notice. We seek comment 
on this proposal. This prohibition appears to unnecessarily constrain 
the free flow of useful information that such entities may find 
particularly helpful in planning their own business operations. We seek 
comment on this view. Alternatively, we could revise section 51.325(c) 
of our rules to permit disclosures to affiliated and unaffiliated 
entities, but only to the extent that the information disclosed is what 
the incumbent LEC would include in its required public notice under 
section 51.327. A third possibility would be to revise section 
51.325(c) to allow such disclosure, but only to the extent the carrier 
makes such information available to all entities that would be entitled 
to direct notice of the network change in question. We seek comment on 
these proposals and any other alternative approaches. If we permit 
disclosure to affiliated or unaffiliated entities prior to public 
notice, should we specify any particular timeframe within which public 
notice must follow?
    68. What are the potential advantages and disadvantages of 
eliminating or revising section 51.325(c)? When this rule was first 
adopted, the goal was to prevent ``preferential disclosure to selected 
entities.'' Are these concerns still warranted? We anticipate that 
providing incumbent LECs greater flexibility to disclose information 
and discuss contemplated changes before cementing definitive plans 
would benefit these carriers, interconnecting carriers, and any other 
interested entities to which disclosure may be useful by providing all 
such entities greater time to consider or respond to possible network 
changes. We seek comment on this expectation. To the extent that 
concerns about some entities receiving advanced notice remain 
warranted, do any of the specific revisions proposed above obviate such 
concerns, and if not, what approach can we adopt to address such 
concerns while still introducing additional flexibility?
    69. Objection Procedures. Should we revise or eliminate the 
procedures set forth in section 51.333(c) of the Commission's rules by 
which a telecommunications service provider or information service 
provider that directly interconnects with the incumbent LEC's network 
may object to the timing of short-term network changes? What costs, if 
any, has the uncertainty introduced by this procedure imposed? What 
public interest benefits are associated with this requirement? Have 
competitive LECs made use of this procedure? Should we adopt a ``deemed 
denied'' timeframe with respect to objections on which the Commission 
has not acted within some specified timeframe? Should we revise the 
objection procedure in any other way?

C. Section 68.110(b)

    70. We seek comment on eliminating or modifying section 68.110(b) 
of our rules, which requires that ``[i]f . . . changes [to a wireline 
telecommunications provider's communications facilities, equipment, 
operations or procedures] can be reasonably expected to render any 
customer's terminal equipment incompatible with the communications 
facilities of the provider of wireline telecommunications, or require 
modification or alteration of such terminal equipment, or otherwise 
materially affect its use or performance, the customer shall be given 
adequate notice in writing, to allow the customer an opportunity to 
maintain uninterrupted service.'' We seek comment on the benefits and 
costs of the current rule and whether the benefits outweigh the costs. 
How is such notice under that rule provided today, and specifically, 
how would a carrier be able to know whether ``any'' terminal equipment 
would be affected? Do customers still rely on or benefit from the 
notice required by section 68.110(b)? To what extent do individuals 
with disabilities still rely on TTYs or other specialized devices or 
services in an analog environment? To what extent have individuals with 
disabilities adopted alternative means of communications, whether using 
telecommunications relay services, texting, videophones, or other 
online communications? To what extent have such individuals relied on 
terminal-equipment-incompatibility notices in the past, and are 
alternative means available that would be more effective at targeting 
affected individuals with disabilities? We seek comment on the benefits 
and costs of the current rule and whether the benefits outweigh the 
costs. Alternatively, should the rule be retained but certain types of 
changes categorically exempted? The Commission's current copper 
retirement rules require incumbent LECs to certify compliance with 
section 68.110(b). If we eliminate section 68.110(b), we propose 
eliminating this certification requirement, and we seek comment on this 
proposal.

IV. Streamlining the Section 214(a) Discontinuance Process

    71. Among other things, section 214(a) requires carriers to obtain 
authorization from the Commission before discontinuing, reducing, or 
impairing service to a community or part of a community. Note that for 
convenience, in certain circumstances this NPRM uses ``discontinue'' 
(or ``discontinued'' or ``discontinuance,'' etc.) as shorthand that 
encompasses the statutory terms ``discontinue, reduce, or impair'' 
unless the context indicates otherwise. With respect to section 
214(a)'s discontinuance provision, generally, and the Commission's 
implementing rules specifically, carriers have asserted ``that exit 
approval requirements are among the very most intrusive forms of 
regulation.'' In this section, we seek comment on targeted measures to 
shorten timeframes and eliminate unnecessary process encumbrances that 
force carriers to maintain legacy services they seek to discontinue.
    72. We believe that modifying our discontinuance processing for 
legacy systems to reduce burdens and protect customers will facilitate 
carriers' ability to retire legacy network infrastructure and will 
accelerate the transition to next generation IP-based networks. We seek 
comment on this view.

A. Applications That ``Grandfather'' Existing Customers

    73. Streamlining the Public Comment Period. We propose to 
streamline the section 214(a) discontinuance process for applications 
that seek authorization to ``grandfather'' low-speed legacy services 
for existing customers. ``Grandfathering'' a service in section

[[Page 22465]]

214 parlance means that a carrier requests permission to stop accepting 
new customers for the service while maintaining service to existing 
customers. We specifically propose to reduce the public comment period 
to a uniform 10 days for all applications seeking to grandfather legacy 
low-speed services regardless of whether the provider filing the 
application is a dominant or non-dominant carrier. We seek comment on 
this proposal.
    74. As a threshold matter, we seek comment on whether expediting 
the review and authorization of applications to grandfather low-speed 
services offers benefits to discontinuing carriers generally. Will 
grandfathering a particular service create greater regulatory parity 
for telecommunications carriers compared to other segments of the 
industry? What sort of costs does such a requirement impose on carriers 
and customers relative to the benefits it imparts? We believe that 
section 214 provides us ample authority to implement the streamlining 
measures we propose. We seek comment on this belief.
    75. More specifically, we seek comment on the streamlined 10-day 
comment period we have proposed. Will this comment period allow 
adequate time for interested parties to review and consider 
discontinuance applications from carriers and to file comments on these 
applications, if necessary? Is there a different time period we should 
consider, e.g., some temporal interval that is either shorter or longer 
than the 10-day comment period we have proposed? Should we reduce the 
time period for reviewing and granting applications to grandfather 
higher-speed services as well, and if so, how? While we have proposed 
to subject applications from both dominant and non-dominant carriers to 
a uniform 10-day comment period, we seek comment on whether there is 
reason to maintain disparate comment periods for dominant versus non-
dominant carriers in this context?
    76. Streamlining the Auto-Grant Period. We propose that all 
applications seeking to grandfather low-speed legacy services be 
automatically granted on the 25th day after public notice unless the 
Commission notifies the applicant that such a grant will not be 
automatically effective. Under our current rules, an application by a 
domestic, dominant carrier will be automatically granted on the 60th 
day after its filing unless the Commission notifies the applicant that 
the grant will not be automatically effective, whereas an application 
by a domestic, non-dominant carrier will be automatically granted on 
the 31st day after its filing unless the Commission notifies the 
applicant that the grant will not be automatically effective. We seek 
comment on this proposal. Like our proposed uniform 10-day comment 
period for all applications to grandfather low-speed legacy services, 
we see no reason to maintain disparate auto-grant periods for such 
applications. Will this streamlined auto-grant period for carriers 
allow adequate time for the Commission and other parties to review 
their applications? Will the shorter auto-grant period incent providers 
to more rapidly resolve end-user concerns, if any?
    77. Is there a different auto-grant period we should consider when 
reviewing applications to grandfather low-speed services, periods that 
are either shorter or longer than the 25-day interval we have proposed? 
Is there reason to maintain disparate auto-grant periods for dominant 
versus non-dominant carriers rather than subject both types of carriers 
to a uniform auto-grant period as we have proposed to do? 
Alternatively, what role should an objection from a potential customer 
or other interested party take in the application for grandfathering? 
Should such an objection result in an application being taken off of 
streamlined treatment?
    78. In addition to potentially reducing the auto-grant period for 
applications seeking to grandfather low-speed services, we seek comment 
on whether to adopt an even more abbreviated auto-grant period for 
grandfathered discontinuance applications that receive no comments 
during the specified comment period. In conjunction with our efforts to 
expedite the automatic granting of these applications, we seek comment 
on whether we should establish a ``shot-clock'' applicable to the time 
period within which the Commission receives applications to grandfather 
low-speed legacy services and when the Commission releases the Public 
Notice seeking comment on such applications. Have carriers filing 
section 214 discontinuance applications experienced seemingly 
unreasonable delay between the time the Commission receives their 
applications and when they are placed on Public Notice?
    79. Eligibility of Grandfathered Services for Streamlined 
Processing. We seek comment on the scope of services to which 
streamlined processing would apply. We propose, at a minimum, to apply 
any streamlined discontinuance process to grandfathered low-speed TDM 
services at lower-than-DS1 speeds (below 1.544 Mbps), as these are 
services that are rapidly being replaced with more advanced or higher-
speed IP-based services. We seek comment on whether this is an 
appropriate speed threshold, or whether higher-speed grandfathered 
services--e.g., any legacy copper-based or other TDM services below 10 
Mbps or 25 Mbps or even higher--should also qualify for this more 
streamlined processing. Should we limit our streamlined comment and 
auto-grant periods to a narrower set of circumstances than we propose? 
Should we adopt a separate sets of auto-grant periods for lower and 
higher speed services? Are there other service characteristics we 
should consider besides speed in deciding which applications may 
qualify for streamlined comment and auto-grant periods?
    80. Additional Steps. Beyond condensing the comment and auto-grant 
periods, we seek comment on any additional steps we might take to 
further streamline the review and approval process for applications to 
grandfather low-speed services. We specifically seek comment on whether 
there are certain circumstances under which applications to grandfather 
low-speed legacy services could be granted once the application is 
accepted for filing without any period of public comment or under which 
we should dispense with requiring applications entirely. Does the 
Commission have authority under section 214(b) to permit grants without 
any period of public comment or to determine that an application is not 
necessary? Would limited forbearance from the requirements of section 
214 be necessary to dispense with requiring an application or to grant 
certain applications without any period of public comment, and if so, 
are the criteria for forbearance met in this instance? Would pursuing 
either of these options harm existing or potential customers, and if 
so, do those harms outweigh the benefits of streamlining?
    81. If the Commission grants certain applications to grandfather 
low-speed services without a period of public comment, what criteria 
should applications satisfy in order to qualify for such a grant? For 
example, there may be cases in which the carrier has not sold the 
service to any new customer for a particular period of time and only a 
limited number of existing customers continue to take the service, and 
we seek comment on whether there is a particular period of time and/or 
number of customers that warrants automatic grant without a comment 
period. Should such grants be contingent on a baseline showing, 
attestation, or affirmative statement in a carrier's application that 
there are reasonable alternatives to the service that is to be 
grandfathered? If so, what type of

[[Page 22466]]

certification or showing should be required?
    82. Government Users. Finally, we seek comment on how we should 
take into account the needs of federal, state, local, and Tribal 
government users of legacy services in deciding whether and how best to 
streamline the process for reviewing section 214 applications that seek 
to grandfather low-speed services. The National Telecommunications and 
Information Administration (NTIA) has stated that federal government 
agencies face particular challenges as customers of telecommunications 
services and are different from many other customers given the budget 
and procurement challenges they face and ``the mission-critical 
activities they perform for the public benefit.'' In its Petition, NTIA 
asserts that government agencies must make budgetary and technical 
plans far in advance to convert or adapt their networks, systems, and 
services to new infrastructure. We agree with NTIA that transitions 
from the provision of old communications services to new ``must not 
disrupt or hamper the performance of mission-critical activities, of 
which safety of life, emergency response, and national security are the 
most prominent examples.'' Further, Assignment of National Security and 
Emergency Preparedness Communications Functions, Exec. Order 13,618, 3 
CFR 273 (July 6, 2012), states the following as policy of the United 
States: ``The Federal Government must have the ability to communicate 
at all times and under all circumstances to carry out its most critical 
and time sensitive missions. Survivable, resilient, enduring, and 
effective communications, both domestic and international, are 
essential to enable the executive branch to communicate within itself 
and with: the legislative and judicial branches; State, local, 
territorial, and tribal governments; private sector entities; and the 
public, allies, and other nations. Such communications must be possible 
under all circumstances to ensure national security, effectively manage 
emergencies, and improve national resilience. The views of all levels 
of government, the private and nonprofit sectors, and the public must 
inform the development of national security and emergency preparedness 
(NS/EP) communications policies, programs, and capabilities.'' To the 
extent these proposed rules accelerate retirement of systems for 
national security emergency preparedness (NS/EP) communication, we seek 
comment on the impact to these capabilities. In particular, we seek 
comment on what will be the impact to NS/EP priority services such as 
the Government Emergency Telecommunications Service (GETS) and the 
Telecommunications Service Priority (TSP) system? How will accelerating 
copper retirement impact these policy goals? Should section 214 
applications demonstrate how priority services will continue to be 
provisioned to government users? How will the transition from the 
provision of old services to new ones affect other national security 
interests? How should we take into account the needs of potential 
government and Tribal customers when considering whether and how to 
streamline the comment and/or auto-grant periods for applications to 
grandfather legacy services? Should applications affecting government 
end users be eligible for any streamlined process we adopt? If we adopt 
special requirements in relation to applications that may affect 
government or Tribal users, how can we identify such applications, 
given that grandfathering affects only non-customers of the service at 
issue?
    83. NTIA suggests that the Commission must ensure that carriers 
provide information to federal agencies, including the direction and 
pace of any network changes, so that agencies are able to plan and fund 
the service, equipment, and systems upgrades needed to maintain 
critical operations without interruption. NTIA asks that the Commission 
require carriers to state in their section 214 discontinuance 
applications: (1) whether and to what extent they have discussed the 
proposed network or service change with affected federal customers; and 
(2) what actions they have taken or what plans, if any, they have made 
to ensure the continuity of mission-critical agency communications 
networks, systems, and services.
    84. We seek comment on this proposal both in general and in the 
context of our section 214 proposals herein. How would such 
requirements benefit federal customers, and would such requirements 
benefit others in the communications ecosystem? How could we measure 
compliance with any such requirements? Would such requirements prove 
unduly burdensome on carriers relative to any potential benefit for 
government users? We seek comment on whether the service agreements or 
contracts into which carriers enter with government entities could 
sufficiently include provisions that address the types of concerns NTIA 
raises generally. With respect to grandfathering, would prong (1) of 
NTIA's proposed certification have any relevance since it is addressed 
to present customers, and how could carriers undertake the consultation 
described in prong (2)? Are there specific concerns applicable to 
Tribal, state, or local government customers? If so, would the NTIA 
proposal address them? If not, what additional or alternative steps 
would?

B. Applications To Discontinue Previously Grandfathered Legacy Data 
Services

    85. We propose to streamline the discontinuance process for any 
application seeking authorization to discontinue legacy data services 
that have previously been grandfathered for a period of no less than 
180 days. We propose to adopt a streamlined uniform comment period of 
10 days and an auto-grant period of 31 days for both dominant and non-
dominant carriers. We seek comment on these proposals and on other 
potential alternatives. We believe that section 214 provides us ample 
authority to streamline the process for reviewing and granting 
applications to discontinue legacy data services that have previously 
been grandfathered for a period of at least 180 days. Do commenters 
agree with this conclusion? Why or why not?
    86. Should this proposed streamlined process be restricted to only 
previously grandfathered legacy data services below a certain speed? 
Should dominant and non-dominant carriers continue to be subject to 
different comment and auto-grant timeframes for discontinuing legacy 
data services that have previously been grandfathered, as is currently 
the case? If so, what should these timeframes be? We encourage 
commenters to advance specific alternative proposals they believe would 
better address the Commission's objective to accelerate the deployment 
of next-generation networks by eliminating unnecessary delays in the 
discontinuance process. To that end, are there other steps we could 
take, beyond condensing the comment and auto-grant periods, which would 
help streamline the review and authorization of applications to 
discontinue legacy data services that have previously been 
grandfathered? Please explain.
    87. We propose to require carriers seeking this streamlined 
discontinuance processing for legacy data services to make a showing 
that they received Commission authority to grandfather such services at 
least 180 days previously. Is the 180-day grandfathering requirement 
too restrictive? Should we consider a shorter grandfathering timeframe? 
Should we require any additional showings to qualify for this 
streamlined treatment? For example, should we

[[Page 22467]]

require a statement identifying one or more alternative comparable data 
services available from the discontinuing provider or a third party 
provider at the same or higher speeds as the service being 
discontinued? If so, how should we define ``comparable'' service? 
Should we require that any such ``comparable'' service be available 
throughout the entire affected service area?
    88. We also propose to require only a statement from the 
discontinuing carrier demonstrating that it received Commission 
authority to grandfather the services at issue at least 180 days 
previously. Is a statement sufficient, or should some other showing be 
required? If commenters believe we should require more than a 
statement, what type of showing should a carrier be obligated to make? 
If we adopt a requirement that carriers must demonstrate the 
availability of one or more alternative comparable data services from 
the discontinuing provider or a third party, would a statement 
identifying such alternative services be sufficient to satisfy this 
requirement? For carriers seeking to rely on a third-party service, 
what type of showing would be necessary to demonstrate the existence of 
alternative data services? Would such a statement suffice for this 
purpose?
    89. Finally, we seek comment on whether special consideration 
should be given to applications seeking to discontinue previously 
grandfathered legacy data services to federal, state, local, and Tribal 
government users for the same reasons we address this question in 
considering streamlining grandfathered and legacy voice service 
discontinuance applications. Should providers be required to make some 
additional showing beyond what we have proposed when seeking to 
discontinue previously grandfathered legacy data services to government 
users? If so, with what additional conditions should they be required 
to comply and why?

C. Clarifying Treatment Under Section 214(a) of Carrier-Customers' End 
Users

    90. We seek comment on reversing the Commission's 2015 
``clarification'' of section 214(a) that substantially expanded the 
scope of end users that a carrier must consider in determining whether 
it is required to obtain section 214 discontinuance authority. In the 
2015 Technology Transitions Order, the Commission ``provided guidance 
and clarification'' that section 214(a) of the Act applies not only to 
a carrier's own retail customers, but also to the retail end-user 
customers of that carrier's wholesale carrier-customers. We seek 
comment on our proposal to reverse the 2015 interpretation and, going 
forward, interpret section 214(a) to require a carrier to take into 
account only its own retail end users when evaluating whether the 
carrier will ``discontinue, reduce, or impair service to a community, 
or part of a community.''
    91. We seek comment on the practical effect of the 2015 
interpretation. What benefits flow to the retail end-user customers of 
the carrier's wholesale carrier customers as a result of that 
interpretation? Does it make sense to take away those benefits? Does it 
make sense to maintain a regulatory obligation that requires a carrier, 
most often an incumbent LEC, to obtain information about third parties, 
i.e., its carrier-customer's retail end users, with whom it generally 
has no relationship, before it can execute its own business plans to 
discontinue its service? What can the upstream carrier be expected to 
know about who the end-user customers of its carrier-customers are and 
how the discontinuance will affect them? Does the current application 
of the requirement impose undue compliance costs and burdens on a 
discontinuing carrier that harm the public by delaying the transition 
to newer, more technologically advanced services? Or, are those costs 
reasonable in light of the potential harm to end-user customers? Have 
there been other effects on the market for legacy services and on the 
transition to IP services that we should consider?
    92. We also seek comment on how carrier-customers' discontinuance 
obligations should inform our interpretation. What weight should we 
give to the fact that a carrier-customer is itself obligated to file a 
discontinuance application under section 214(a) of the Act and section 
63.71 of the Commission's rules if it discontinues, reduces, or impairs 
service as a result of the loss of a wholesale input from an upstream 
carrier? Can we find that the objectives of section 214(a) are met 
because the carrier-customer itself is subject to section 214(a)'s 
requirement to obtain Commission approval if a change in the inputs 
relied on by the carrier-customer results in a discontinuance, 
reduction, or impairment of services to the carrier-customer's retail 
end users? Or, are there situations in which end-user customers would 
be inadequately protected by such an interpretation? Do the contractual 
and business relationships between upstream carriers and their carrier-
customers provide additional safeguards to retail end users?
    93. We also seek comment on the relationship between sections 
214(a) and 251(c)(5) of the Act. When section 214(a) was enacted during 
World War II, ``one of Congress's main concerns was that [domestic 
telegraph] mergers might result in a loss or impairment of service 
during this war time period.'' By contrast, 53 years later, Congress 
revised the Act ``to promote competition and reduce regulation . . . 
and encourage the rapid deployment of new telecommunications 
technologies.'' Congress enacted section 251(c)(5) of the Act to 
require incumbent LECs to ``provide reasonable public notice of changes 
in the information necessary for the transmission and routing of 
services using that local exchange carrier's facilities or networks, as 
well as of any other changes that would affect the interoperability of 
those facilities and networks.'' The Commission's regulations 
implementing section 251(c)(5), require, among other things, that an 
incumbent LEC ``must provide public notice regarding any network change 
that [w]ill affect a competing service provider's performance or 
ability to provide service.'' In enacting section 251(c)(5), did 
Congress signal its intent that incumbent LECs need only provide 
notice, not obtain approval, when making changes to wholesale inputs 
relied upon by competing carriers? At the time of the 1996 Act, the 
Commission interpreted its section 214(a) discontinuance authority not 
to apply to wholesale customers. Did that interpretation have any 
bearing on Congress's intent when enacting section 251(c)(5)? How 
should we reconcile the Congressional mandates in sections 214(a) and 
251(c)(5) of the Act to best eliminate regulatory barriers to the 
deployment of next-generation networks and services, avoid unnecessary 
capital expenditure on legacy services, and protect consumers and the 
public interest? Alternatively, was the Commission's statutory 
interpretation in the 2015 Technology Transitions Order correct? Are 
there other interpretations of the interaction between these two 
provisions that would be more consistent with Congressional intent? If 
so, what are they?
    94. Finally, we seek comment on whether the Commission correctly 
interpreted the precedent upon which it relied to support its expansive 
2015 clarification. Prior to the 2015 Technology Transitions Order, it 
appears that the Commission had held that discontinuances to wholesale 
purchasers were not cognizable under section 214(a). The 2015 
Technology Transitions Order acknowledges that

[[Page 22468]]

distinction, stating in a footnote that ``[t]he Commission will . . . 
continue to distinguish discontinuance of service that will affect 
service to retail customers from discontinuances that affect only the 
carrier-customer itself.'' Relying on BellSouth Telephone, however, the 
Commission adopted the view that upstream carriers have responsibility 
for carrier-customers' end-user customers under section 214(a). Did the 
Commission correctly interpret BellSouth Telephone, particularly in 
light of the facts of that case? Did the Commission incorrectly read 
BellSouth Telephone to protect the business models of certain 
downstream retail carriers, regardless of the availability of the same 
or comparable alternatives in the community? All of the other cases 
cited in the 2015 Technology Transitions Order found that section 
214(a) did not apply. Accordingly, did the Commission properly 
interpret and rely on those cases? Considering that all but one of the 
cases predated the adoption of the 1996 Act and its specific 
protections for wholesale customers, including section 251(c)(5), what 
continuing probative value do the cases have? Indeed, the only 
Commission precedent cited in the 2015 Technology Transitions Order 
that postdated the 1996 Act did not explicitly consider the 
applicability of section 251(c)(5). Did the Commission grant to 
carrier-customers in 2015 rights beyond Congress's intent in the 1996 
Act in an attempt to protect carrier-customers' end users, even though 
those end users have the benefit of the section 214(a) discontinuance 
process from their own provider? What is the proper interplay between 
sections 251 and 214 in this context?

D. Other Part 63 Proposals

    95. Further Streamlining of 214(a) Discontinuances. In addition to 
the proposals discussed above, we seek comment on methods to streamline 
section 214(a) applications more generally. Specifically, we seek 
comment on whether it would be appropriate for the Commission to 
conclude that section 214(a) discontinuances will not adversely affect 
the present or future public convenience and necessity, provided that 
fiber, IP-based, or wireless services are available to the affected 
community. What type of showing would be required on the part of 
discontinuing carriers to demonstrate the existence of alternative 
services? What types of fiber, IP-based, or wireless services would 
constitute acceptable alternatives, and under what circumstances? Would 
a demonstration regarding the availability of third-party services 
satisfy this kind of test, or would only services offered by the 
discontinuing carrier suffice?
    96. We also seek comment on the best approach for granting 
streamlined treatment to these types of discontinuances. In 
circumstances where a discontinuing carrier's service overlaps with an 
alternative fiber, IP-based, or wireless service, should we require a 
section 214 discontinuance application? If not, should we either grant 
limited blanket discontinuance authority or forbear on a limited basis 
from section 214? If we require an application, would a grant of the 
section 214 application upon acceptance for filing be appropriate or 
would allowing for public notice and comment be necessary to satisfy 
the requirements of section 214(a)? If we maintain a comment period, 
should we reduce the comment and automatic grant timeframe? As another 
alternative, should we instead require carriers to file only a notice 
of discontinuance accompanied by proof that fiber, IP-based, or 
wireless alternatives are available to the affected community, in lieu 
of a full application for approval? If so, what proof would suffice, 
and how should the Commission review that filing?
    97. Section 63.71(g) Applications to Discontinue Service With No 
Customers. We specifically propose to maintain but modify the provision 
adopted in the 2016 Technology Transitions Order for streamlined 
treatment of section 214 discontinuance applications for all services 
that have not had customers for a period of six months prior to 
submission of the application. Under this rule, which was based on a 
proposal submitted to the Commission by AT&T, carriers may certify to 
the Commission that the service to be discontinued is ``a service for 
which the requesting carrier has had no customers or reasonable 
requests for service during the 180-day period immediately preceding 
submission of the application,'' and the application will be granted 
automatically on the 31st day after filing, unless the Commission has 
notified the applicant that the grant will not be automatically 
effective. We note that at least one carrier representative has 
recently endorsed this provision of the rules adopted in the 2016 
Technology Transitions Order as an effective tool for reducing barriers 
to next generation infrastructure deployment. We propose to shorten the 
timeframe during which a carrier must demonstrate that it has had no 
customers for a given service, from 180 days to 60 days, and seek 
comment on this modification. Because this proposed rule applies only 
to services without customers, consumer harm from further streamlining 
these kinds of discontinuance applications appears unlikely. We seek 
comment on retaining and modifying section 63.71(g) as proposed, and on 
any other additions or amendments to the rule, such as shortening the 
time in which the application is automatically granted, that may 
further our goal of removing regulatory barriers to broadband 
investment. Would a different timeframe during which a carrier must 
demonstrate that it has had no customers be more appropriate to balance 
the interests of discontinuing carriers and potential consumers of 
these services?
    98. Section 63.71(i) Auto-grants for Competitive LECs Upon Copper 
Retirement. We seek comment on revising section 63.71(i), which was 
adopted in the 2016 Technology Transitions Order to provide for 
automatic discontinuance authority, subject to certain conditions, for 
competitive LECs that must discontinue service on a date certain due to 
an incumbent LEC's effective copper retirement. Specifically, to the 
extent we eliminate section 51.332, we seek comment on revising section 
63.71(i) to include as a condition that the relevant network change 
notice provides no more than six months' notice. We also seek comment 
on how, if at all, we should modify section 63.71(i) to further 
harmonize it with any revisions we adopt herein to the incumbent LEC 
copper retirement process under Part 51 of our rules. We seek to ensure 
our rules take into account situations, where, through no fault of its 
own, a competitive LEC is unable to comply with our section 214(a) 
discontinuance requirements as a result of an incumbent LEC's 
transition to a next-generation network. To the extent we reduce the 
waiting period for implementing planned copper retirements, would this 
eliminate the need for or necessitate any changes to section 63.71(i)?
    99. 2016 Technology Transitions Order Revisions to Sections 
63.71(a)-(b). We seek comment on whether we should retain, modify, or 
eliminate the changes made by the 2016 Technology Transitions Order to 
section 63.71(a) and the introduction of new section 63.71(b). The 2016 
Technology Transitions Order modified section 63.71(a) by requiring 
carriers to provide notice of discontinuance applications to any 
federally-recognized Tribal Nations with authority over the Tribal 
lands in which the discontinuance, reduction, or impairment of service 
is proposed. It

[[Page 22469]]

also modified section 63.71(a) to clearly permit carriers to provide 
email notice to customers of discontinuance applications, and it 
established requirements in section 63.71(b) that carriers must meet 
when using email to satisfy the written notice requirements.

V. Initial Regulatory Flexibility Analysis

    100. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this NPRM. Written 
public comments are requested on this IRFA. Comments must be identified 
as responses to the IRFA and must be filed by the deadlines for 
comments provided in paragraph 133 of this NPRM. The Commission will 
send a copy of this NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA).

A. Need for, and Objectives of, the Proposed Rules

    101. The NPRM proposes new steps designed to accelerate the 
deployment of next-generation networks and services by removing 
barriers to infrastructure investment. Access to high speed broadband 
creates economic opportunity, enabling entrepreneurs to create 
businesses, immediately reach customers throughout the world and 
revolutionize entire industries. This proceeding aims to better enable 
broadband providers to build, maintain, and upgrade their networks, 
which will spur job growth and ultimately lead to more affordable and 
accessible Internet access and other broadband services for all 
Americans. Today's action proposes to remove regulatory barriers to 
infrastructure at the state and local level, proposes changes to speed 
the transition from copper networks and legacy services to next-
generation networks and services dependent on fiber, and proposes to 
reform Commission regulations that are raising costs and slowing 
broadband deployment rather than facilitating it. Thus, the Commission 
seeks comment on a variety of issues in the following areas.
    102. First, the NPRM proposes and seeks comment on changes to the 
Commission's pole attachment rules that would: (1) Adopt a streamlined 
timeframe for gaining access to utility poles; (2) reduce charges paid 
by attachers to utilities for work done to make a pole ready for new 
attachments; (3) codify the elimination of certain capital costs from 
the formulas used to confirm the reasonableness of rates charged by 
utilities for pole attachments by telecommunications and cable 
providers; (4) establish a 180-day shot clock for Commission 
consideration of pole attachment complaints; (5) adopt a formula for 
computing the maximum pole attachment rate that may be imposed on an 
incumbent LEC, and (6) adopt rules that would interpret the 
interconnection rules for telecommunications carriers in section 251 of 
the Act and the pole attachment rules of section 224 in a manner that 
allows for competitive LECs to demand access to incumbent LEC poles and 
vice versa.
    103. Second, the NPRM seeks comment on changing the Commission's 
Part 51 copper retirement rules to expedite the copper retirement 
process and reduce associated regulatory burdens to facilitate more 
rapid deployment of next-generation networks, as well a proposal and 
other potential changes to streamline and/or eliminate provisions of 
the more generally applicable network change notification rules. It 
also seeks comment on eliminating section 68.110(b) of the Commission's 
rules.
    104. Third, the NPRM seeks comment on proposals to streamline the 
section 214(a) discontinuance process by reducing the comment and 
automatic-grant timeframes for two specific categories of 
discontinuance applications: ``Grandfathered'' low-speed legacy 
services for existing customers, and legacy data services that have 
been grandfathered for a period of no less than 180 days. Fourth, the 
NPRM seeks comment on reversing the Commission's 2015 ``carrier-
customer's retail end user'' interpretation of the scope of section 
214(a) discontinuance authority.
    105. Fifth, the NPRM seeks comment on other section 63.71 changes 
to further streamline the section 214 (a) discontinuance process for 
carriers.

B. Legal Basis

    106. The proposed action is authorized under sections 1, 2, 4(i), 
214, 224, 251, and 253 of the Communications Act of 1934, as amended; 
47 U.S.C. 151, 152, 154(i), 214, 224, 251, 253.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    107. The RFA directs agencies to provide a description and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and by the rule revisions on which the 
NPRM seeks comment, if adopted. The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    108. The majority of our proposals and the changes on which we seek 
comment in the NPRM will affect obligations on incumbent LECs and, in 
some cases, competitive LECs. Certain pole attachment proposals also 
would affect obligations on utilities that own poles, 
telecommunications carriers and cable television systems that seek to 
attach equipment to utility poles, and other LECs that own poles. The 
definitions of utility and telecommunications carrier for purposes of 
our pole attachment rules are found in 47 U.S.C. 224(a)(1) and (a)(5), 
respectively. Our actions, over time, may affect small entities that 
are not easily categorized at present. Other entities, however, that 
choose to object to network change notifications for copper retirement 
under the changes on which we seek comment and section 214 
discontinuance applications may be economically impacted by the 
proposals in this NPRM.
    109. Small Businesses, Small Organizations, and Small Governmental 
Jurisdictions. Our action may, over time, affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three comprehensive, statutory small entity size standards 
that encompass entities that could be directly affected by the new and 
revised rules adopted today. According to the most currently available 
SBA data, there are 28.8 million small businesses in the U.S., which 
represent 99.9% of all businesses in the United States. Additionally, a 
``small organization'' is generally ``any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field.'' Nationwide, as of 2007, there were approximately 1,621, 215 
small organizations. Finally, the term ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' Census 
Bureau data for 2012 indicate that there were 89,476

[[Page 22470]]

governmental jurisdictions in the United States. We estimate that, of 
this total, as many as 88,718 entities may qualify as ``small 
governmental jurisdictions.'' Thus, we estimate that most governmental 
jurisdictions are small.
    110. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as ``establishments primarily engaged in 
operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired communications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution, and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry.'' The SBA has developed a small business size standard 
for Wired Telecommunications Carriers, which consists of all such 
companies having 1,500 or fewer employees. Census data for 2012 shows 
that there were 3,117 firms that operated that year. Of this total, 
3,083 operated with fewer than 1,000 employees. Thus, under this size 
standard, the majority of firms in this industry can be considered 
small.
    111. Local Exchange Carriers (LECs). Neither the Commission nor the 
SBA has developed a size standard for small businesses specifically 
applicable to local exchange services. The closest applicable NAICS 
Code category is for Wired Telecommunications Carriers, as defined in 
paragraph 12 of this IRFA. Under that size standard, such a business is 
small if it has 1,500 or fewer employees. Census data for 2012 show 
that there were 3,117 firms that operated that year. Of this total, 
3,083 operated with fewer than 1,000 employees. The Commission 
therefore estimates that most providers of local exchange carrier 
service are small entities that may be affected by the rules adopted.
    112. Incumbent Local Exchange Carriers (incumbent LECs). Neither 
the Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The closest 
applicable NAICS Code category is Wired Telecommunications Carriers as 
defined in paragraph 13 of this IRFA. Under that size standard, such a 
business is small if it has 1,500 or fewer employees. According to 
Commission data, 3,117 firms operated in that year. Of this total, 
3,083 operated with fewer than 1,000 employees. Consequently, the 
Commission estimates that most providers of incumbent local exchange 
service are small businesses that may be affected by the rules and 
policies adopted. One thousand three hundred and seven (1,307) 
Incumbent Local Exchange Carriers reported that they were incumbent 
local exchange service providers. Of this total, an estimated 1,006 
have 1,500 or fewer employees.
    113. Competitive Local Exchange Carriers (competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers. Neither the Commission nor the SBA 
has developed a small business size standard specifically for these 
service providers. The appropriate NAICS Code category is Wired 
Telecommunications Carriers, as defined in paragraph 12 of this IRFA. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. U.S. Census data for 2012 indicate that 3,117 firms 
operated during that year. Of that number, 3,083 operated with fewer 
than 1,000 employees. Based on this data, the Commission concludes that 
the majority of Competitive LECs, CAPs, Shared-Tenant Service 
Providers, and Other Local Service Providers are small entities. 
According to Commission data, 1,442 carriers reported that they were 
engaged in the provision of either competitive local exchange services 
or competitive access provider services. Of these 1,442 carriers, an 
estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers 
have reported that they are Shared-Tenant Service Providers, and all 17 
are estimated to have 1,500 or fewer employees. In addition, 72 
carriers have reported that they are Other Local Service Providers. Of 
this total, 70 have 1,500 or fewer employees. Consequently, the 
Commission estimates that most providers of competitive local exchange 
service, competitive access providers, Shared-Tenant Service Providers, 
and Other Local Service Providers are small entities that may be 
affected by the adopted rules.
    114. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a definition for Interexchange Carriers. The closest 
NAICS Code category is Wired Telecommunications Carriers as defined in 
paragraph 13 of this IRFA. The applicable size standard under SBA rules 
is that such a business is small if it has 1,500 or fewer employees. 
According to Commission data, 359 companies reported that their primary 
telecommunications service activity was the provision of interexchange 
services. Of this total, an estimated 317 have 1,500 or fewer employees 
and 42 have more than 1,500 employees. Consequently, the Commission 
estimates that the majority of interexchange service providers are 
small entities that may be affected by rules adopted.
    115. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a size standard for small businesses specifically applicable 
to Other Toll Carriers. This category includes toll carriers that do 
not fall within the categories of interexchange carriers, operator 
service providers, prepaid calling card providers, satellite service 
carriers, or toll resellers. The closest applicable NAICS Code category 
is for Wired Telecommunications Carriers, as defined in paragraph 13 of 
this IRFA. Under that size standard, such a business is small if it has 
1,500 or fewer employees. Census data for 2012 shows that there were 
3,117 firms that operated that year. Of this total, 3,083 operated with 
fewer than 1,000 employees. Thus, under this category and the 
associated small business size standard, the majority of Other Toll 
Carriers can be considered small. According to Commission data, 284 
companies reported that their primary telecommunications service 
activity was the provision of other toll carriage. Of these, an 
estimated 279 have 1,500 or fewer employees. Consequently, the 
Commission estimates that most Other Toll Carriers that may be affected 
by our rules are small.
    116. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves, such as cellular services, paging services, wireless internet 
access, and wireless video services. The appropriate size standard 
under SBA rules is that such a business is small if it has 1,500 or 
fewer employees. For this industry, Census data for 2012 show that 
there were 967 firms that operated for the entire year. Of this total, 
955 firms had fewer than 1,000 employees. Thus under this category and 
the associated size standard, the Commission estimates that the 
majority of wireless telecommunications carriers (except satellite) are 
small entities. Similarly, according to internally developed Commission 
data, 413 carriers reported that they were engaged in the provision

[[Page 22471]]

of wireless telephony, including cellular service, Personal 
Communications Service (PCS), and Specialized Mobile Radio (SMR) 
services. Of this total, an estimated 261 have 1,500 or fewer 
employees. Consequently, the Commission estimates that approximately 
half of these firms can be considered small. Thus, using available 
data, we estimate that the majority of wireless firms can be considered 
small.
    117. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standards for the purpose of 
cable rate regulation. Under the Commission's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide. 
Industry data indicate that there are currently 4,600 active cable 
systems in the United States. Of this total, all but nine cable 
operators nationwide are small under the 400,000-subscriber size 
standard. In addition, under the Commission's rate regulation rules, a 
``small system'' is a cable system serving 15,000 or fewer subscribers. 
Current Commission records show 4,600 cable systems nationwide. Of this 
total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 
systems have 15,000 or more subscribers, based on the same records. 
Thus, under this standard as well, we estimate that most cable systems 
are small entities.
    118. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, also contains a size standard 
for small cable system operators, which is ``a cable operator that, 
directly or through an affiliate, serves in the aggregate fewer than 
one percent of all subscribers in the United States and is not 
affiliated with any entity or entities whose gross annual revenues in 
the aggregate exceed $250,000,000 are approximately 52,403,705 cable 
video subscribers in the United States today. Accordingly, an operator 
serving fewer than 524,037 subscribers shall be deemed a small operator 
if its annual revenues, when combined with the total annual revenues of 
all its affiliates, do not exceed $250 million in the aggregate. Based 
on available data, we find that all but nine incumbent cable operators 
are small entities under this size standard. We note that the 
Commission neither requests nor collects information on whether cable 
system operators are affiliated with entities whose gross annual 
revenues exceed $250 million. Although it seems certain that some of 
these cable system operators are affiliated with entities whose gross 
annual revenues exceed $250,000,000, we are unable at this time to 
estimate with greater precision the number of cable system operators 
that would qualify as small cable operators under the definition in the 
Communications Act.
    119. All Other Telecommunications. ``All Other Telecommunications'' 
is defined as follows: ``This U.S. industry is comprised of 
establishments that are primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing Internet services or voice over Internet 
protocol (VoIP) services via client supplied telecommunications 
connections are also included in this industry.'' The SBA has developed 
a small business size standard for ``All Other Telecommunications,'' 
which consists of all such firms with gross annual receipts of $32.5 
million or less. For this category, Census Bureau data for 2012 show 
that there were 1,442 firms that operated for the entire year. Of those 
firms, a total of 1,400 had annual receipts less than $25 million. 
Consequently, we conclude that the majority of All Other 
Telecommunications firms can be considered small.
    120. Electric Power Generation, Transmission and Distribution. The 
Census Bureau defines this category as follows: ``This industry group 
comprises establishments primarily engaged in generating, transmitting, 
and/or distributing electric power. Establishments in this industry 
group may perform one or more of the following activities: (1) Operate 
generation facilities that produce electric energy; (2) operate 
transmission systems that convey the electricity from the generation 
facility to the distribution system; and (3) operate distribution 
systems that convey electric power received from the generation 
facility or the transmission system to the final consumer.'' This 
category includes electric power distribution, hydroelectric power 
generation, fossil fuel power generation, nuclear electric power 
generation, solar power generation, and wind power generation. The SBA 
has developed a small business size standard for firms in this category 
based on the number of employees working in a given business. According 
to Census Bureau data for 2012, there were 1,742 firms in this category 
that operated for the entire year.
    121. Natural Gas Distribution. This economic census category 
comprises: ``(1) establishments primarily engaged in operating gas 
distribution systems (e.g., mains, meters); (2) establishments known as 
gas marketers that buy gas from the well and sell it to a distribution 
system; (3) establishments known as gas brokers or agents that arrange 
the sale of gas over gas distribution systems operated by others; and 
(4) establishments primarily engaged in transmitting and distributing 
gas to final consumers.'' The SBA has developed a small business size 
standard for this industry, which is all such firms having 1,000 or 
fewer employees. According to Census Bureau data for 2012, there were 
422 firms in this category that operated for the entire year. Of this 
total, 399 firms had employment of fewer than 1,000 employees, 23 firms 
had employment of 1,000 employees or more, and 37 firms were not 
operational. Thus, the majority of firms in this category can be 
considered small.
    122. Water Supply and Irrigation Systems. This economic census 
category ``comprises establishments primarily engaged in operating 
water treatment plants and/or operating water supply systems. The water 
supply system may include pumping stations, aqueducts, and/or 
distribution mains. The water may be used for drinking, irrigation, or 
other uses.'' The SBA has developed a small business size standard for 
this industry, which is all such firms having $27.5 million or less in 
annual receipts. According to Census Bureau data for 2012, there were 
3,261 firms in this category that operated for the entire year. Of this 
total, 3,035 firms had annual sales of less than $25 million. Thus, the 
majority of firms in this category can be considered small.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    123. The NPRM proposes and/or seeks comment on a number of rule 
changes that will affect reporting, recordkeeping, and other compliance 
requirements. We expect the rule revisions proposed or suggested for 
potential change in the NPRM to reduce reporting, recordkeeping, and 
other compliance requirements. The rule revisions taken as a whole 
should have a beneficial reporting, recordkeeping, or compliance impact 
on small entities because all carriers will be subject to fewer such 
burdens. Each of these changes is described below.
    124. The NPRM proposes the following changes to the current pole

[[Page 22472]]

attachment timeline: (1) Requiring utilities to make a decision on 
completed pole attachment applications within a timeframe shorter than 
the current 45 days of receipt; (2) requiring utilities to provide an 
estimate of make-ready costs to new attachers within a timeframe that 
is shorter than the current 14 days; and (3) establishing a time period 
for existing attachers to complete make-ready work to their attachments 
in the communications space of a pole that is shorter than the current 
60 days. The NPRM also proposes to limit a new attacher's liability for 
make-ready costs to those costs actually caused by the new attachment, 
to require utilities to proportionately share in the cost of a new 
attachment for which they receive a direct benefit, and to require 
utilities that perform make-ready work to make available to new 
attachers a schedule of common make-ready charges. With regard to pole 
attachment rates, the NPRM proposes to codify the elimination from the 
telecommunications and cable rate formulas those capital costs that 
already have been paid to the utility via make-ready charges, to 
establish a rebuttable presumption that incumbent LECs are similarly 
situated to other attachers on a pole, and to establish a rebuttable 
pole attachment formula for computing the maximum pole attachment rate 
to be charged to incumbent LECs. Further, the NPRM proposes a 180-day 
shot clock for Commission resolution of pole access complaints, which 
would include a mandatory pre-complaint meeting between the parties in 
order to resolve procedural issues and deadlines. Finally, the NPRM 
proposes to allow incumbent LECs to request nondiscriminatory pole 
access from other LECs that own or control utility poles. Should the 
Commission adopt any of these proposals, such actions could result in 
increased, reduced, or otherwise altered reporting, recordkeeping, or 
other compliance requirements for utilities and attaching entities. The 
NPRM also seeks comment on eliminating some or all of the changes to 
the copper retirement process adopted by the Commission in the 2015 
Technology Transitions Order, including the rules that doubled the time 
period during which an incumbent LEC must wait to implement the planned 
copper retirement after the Commission's publication of public notice 
from 90 days to 180 days, required direct notice to retail customers, 
and expanded the types of information that must be disclosed. The NPRM 
also proposes eliminating the rule preventing incumbent LECs from 
disclosing information about planned network changes with certain 
entities until public notice has been given of those planned changes, 
and also seeks comment on eliminating section 68.110(b), which requires 
that a carrier notify its customers when changes to its facilities, 
equipment, operations, or procedures might render customers' terminal 
equipment incompatible with those facilities, equipment, operations, or 
procedures. In addition, the NPRM proposes targeted measures and/or 
seeks comment on potential rule changes to shorten timeframes and 
eliminate unnecessary regulatory process encumbrances that carriers 
face to maintain legacy services they seek to discontinue.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    125. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    126. The Commission proposes to adopt specific changes to its pole 
attachment timeline that would provide a predictable, timely process 
for parties to obtain pole attachments, while maintaining the interests 
of utilities and existing attachers in preserving safety, reliability, 
and sound engineering. In consideration of the new timeline, the 
Commission seeks comments on alternatives that might help smaller 
utilities and attachers: (1) Whether it would be reasonable to cap at 
45 days a utility's review of a large number of pole attachment 
applications; (2) whether it is reasonable to combine the survey, 
estimate, and acceptance stages of the current Commission pole 
attachment timeline into one step with a condensed timeframe; and (3) 
whether 30 days is long enough for existing attachers to complete 
routine make-ready work. The Commission also seeks alternatives to its 
current make-ready process in the areas of: (1) The expanded use of 
utility-approved contractors to perform make-ready work; (2) allowing 
existing attachers to observe the make-ready work being performed by 
new attachers and their contractors; (3) requiring utilities and 
attachers to agree on the specific contractors to perform make-ready 
work on their equipment; (4) allowing new attachers to perform routine 
make-ready work on all pole equipment without involving existing 
attachers; and (5) establishing pole attachment processes modeled after 
``one-touch, make-ready'', ``right-touch, make-ready'', and other 
approaches. The Commission also seeks alternatives to its current 
complaint process as the best way to keep make-ready costs just and 
reasonable, asks whether a bonus payment or multiplier could be used to 
incent existing attachers to meet their make-ready timelines, asks 
about ways to incent private negotiations between new and existing 
attachers to govern the make-ready process (e.g., allowing a new 
attacher to select a default contractor to perform make-ready, 
penalizing existing attachers that fail to meet make-ready deadlines), 
asks whether utilities should be required to make information available 
online regarding the cost, location, and availability of poles and 
conduits, asks whether a flat per-pole make-ready fee would be 
preferable to the current method of allocating make-ready costs, asks 
whether utilities should be required to reimburse attachers for the 
costs of new attachments that subsequently benefit utilities (which 
might benefit new entrants, especially small entities with limited 
resources), asks whether the Commission should eliminate all capital 
costs from its pole attachment rate formulas, asks about the 
appropriate pole attachment rate for attachers providing commingled 
cable and telecommunications services, and asks whether we should adopt 
a shot clock for all pole attachment complaints (not just those related 
to pole access).
    127. The NPRM also seeks comment on the need to revise the 
requirements of our network change disclosure rules applicable to 
copper retirements to reduce barriers to investment in next-generation 
technologies and promote broadband deployment. To that end, the NPRM 
seeks comment on eliminating section 51.332 in its entirety and 
returning to a more streamlined version of the pre-2015 Technology 
Transitions Order requirements for handling copper retirements subject 
to section 251(c)(5) of the Act. Specifically, the NPRM seeks comment 
on reinstating the less burdensome requirements under section 51.333(c) 
of the Commission's rules applicable to copper retirements prior to 
adoption of the 2015 Technology

[[Page 22473]]

Transitions Order. In the alternative, the NPRM seeks comment on 
eliminating all differences between copper retirement and other network 
change notice requirements, rendering copper retirement changes subject 
to the same long-term or, where applicable, short-term network change 
notice requirements as all other types of network changes subject to 
section 251(c)(5). As a third alternative, the NPRM seeks comment on 
retaining but amending section 51.332 to streamline the process. 
Specifically, the NPRM seeks comment on revising section 51.332 to: (1) 
Require an incumbent LECs to serve its notice only to telephone 
exchange service providers that directly interconnect with the 
incumbent LEC's network, rather than ``each entity within the affected 
service area that directly interconnects with the incumbent LEC's 
network''; (2) reduce the waiting period to 90 days from 180 days after 
the Commission releases its public notice before the incumbent LEC may 
implement the planned copper retirement; (3) provide greater 
flexibility regarding the time in which an incumbent LEC must file the 
requisite certification; and (4) reduce the waiting period to 30 days 
where the copper facilities being retired are no longer being used to 
serve any customers in the affected service area; and to potentially 
reinstate the objection procedures applicable under the rules in place 
prior to the 2015 Technology Transitions Order if section 51.332 is 
eliminated. The NPRM also proposes to eliminate the prohibition on 
incumbent LECs disclosing information about planned network changes 
prior to giving public notice of those planned changes. And the NPRM 
seeks comment on eliminating or modifying section 68.110(b), which 
requires that a carrier notify its customers when changes to its 
facilities, equipment, operations, or procedures might render 
customers' terminal equipment incompatible with those facilities, 
equipment, operations, or procedures.
    128. The NPRM seeks comment on proposals to streamline the section 
214(a) discontinuance process for applications that seek authorization 
to ``grandfather'' low-speed legacy services, such as TDM services at 
lower-than-DS1 speeds (below 1.544 Mbps), for existing customers. 
Specifically, the proposals seek to reduce the public comment period to 
10 days for applications from both dominant and non-dominant carriers 
seeking to grandfather legacy low-speed services. The proposals also 
seek to revise the Commission's discontinuance rules to provide for 
automatic grant of applications by both dominant and non-dominant 
carriers to grandfather low-speed legacy services on the 25th day after 
the Commission has released a public notice seeking comment on an 
application, unless the Commission notifies the applicant that such a 
grant will not be automatically effective.
    129. The NPRM seeks comment on proposals to streamline the 
discontinuance process for any application seeking authorization to 
discontinue legacy data services that have been grandfathered for a 
period of no less than 180 days prior to the filing of the application. 
The proposals seek to adopt a uniform public comment period of 10 days 
for all applications seeking to discontinue legacy data services that 
have previously been grandfathered, regardless of whether the carrier 
filing the application is a dominant or non-dominant carrier. 
Additionally, the proposals seek to provide for automatic grant of 
these applications on the 31st day after filing, unless the Commission 
notifies the applicant that such a grant will not be automatically 
effective.
    130. The NPRM seeks comment on revising the discontinuance rule 
pertaining to discontinuance applications filed in response to a copper 
retirement notice to reflect any subsequent changes to the copper 
retirement rules and any other streamlining measures that could be 
taken.
    131. The NPRM seeks comment on reversing the Commission's 2015 
``clarification'' of section 214(a) that substantially expanded the 
scope of end users that a carrier must consider in determining whether 
it is required to obtain section 214 discontinuance authority, and, 
going forward, interpret section 214(a) to require a carrier to take 
into account only its own end users when evaluating whether the carrier 
will ``discontinue, reduce, or impair service to a community, or part 
of a community.''
    132. The Commission believes that its proposals and potential rule 
changes upon which the NPRM seeks comment will benefit all carriers, 
regardless of size. The proposals and potential rule changes would 
further the goal of reducing regulatory burdens, thus facilitating 
investment in next-generation networks and promoting broadband 
deployment. We anticipate that a more modernized regulatory scheme will 
encourage carriers to invest in and deploy even more advanced 
technologies as they evolve.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    133. None.

VI. Procedural Matters

A. Ex Parte Rules

    134. The proceeding related to this NPRM 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 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.

B. Initial Regulatory Flexibility Analysis

    135. Pursuant to the Regulatory Flexibility Act (RFA), the 
Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities of 
the policies and actions considered in this NPRM. The text of

[[Page 22474]]

the IRFA is set forth above. Written public comments are requested on 
this IRFA. Comments must be identified as responses to the IRFA and 
must be filed by the deadlines for comments on the NPRM. The 
Commission's Consumer and Governmental Affairs Bureau, Reference 
Information Center, will send a copy of the NPRM, including the IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration.

C. Paperwork Reduction Act

    136. This document contains proposed new and modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget to comment on the information 
collection requirements contained in this document, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. In addition, 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.

VII. Ordering Clauses

    137. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1-4, 201, 202, 214, 224, 251, 253 and 303(r) of 
the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201, 
202, 214, 224, 251, 253, 303(r), this NPRM is adopted.
    138. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this NPRM to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects

47 CFR Part 1

    Practice and procedure.

47 CFR Part 51

    Interconnection.

47 CFR Part 63

    Extension of lines, new lines, and discontinuance, reduction, 
outage and impairment of service by common carriers; and Grants of 
recognized private operating agency status.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 1, 51, and 63 
as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority for part 1 continues to read as follows:

    Authority:  15 U.S.C. 79 et seq., 47 U.S.C. 151, 154(i) and (j), 
155, 157, 160, 201, 224, 225, 227, 303, 309, 301, 332, 1403, 1404, 
1451, 1452, and 1455.
0
2. Amend Sec.  1.1403 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  1.1403  Duty to provide access; modifications; notice of removal, 
increase or modification; petition for temporary stay; and cable 
operator notice.

    (a) A utility shall provide a cable television system or any 
telecommunications carrier with nondiscriminatory access to any pole, 
duct, conduit, or right-of-way owned or controlled by it. A utility 
that is a local exchange carrier shall provide any incumbent local 
exchange carrier (as defined in 47 U.S.C. 251(h)) with 
nondiscriminatory access to any pole, duct, conduit, or right-of-way 
owned or controlled by it. Notwithstanding either of the foregoing 
obligations, a utility may deny a cable television system or any 
telecommunications carrier, and a utility that is a local exchange 
carrier may deny an incumbent local exchange carrier, access to its 
poles, ducts, conduits, or rights-of-way, on a non-discriminatory basis 
where there is insufficient capacity or for reasons of safety, 
reliability and generally applicable engineering purposes.
    (b) Requests for access to a utility's poles, ducts, conduits, or 
rights-of-way by a telecommunications carrier or cable operator must be 
in writing. If access is not granted within 15 days of the request for 
access, the utility must confirm the denial in writing by the 15th day 
(or within the timelines set forth in section 1.1420(g)). The utility's 
denial of access shall be specific, shall include all relevant evidence 
and information supporting its denial, and shall explain how such 
evidence and information relate to a denial of access for reasons of 
lack of capacity, safety, reliability or engineering standards.
* * * * *
0
3. Amend Sec.  1.1404 by revising paragraph (k) to read as follows:


Sec.  1.1404   Complaint.

* * * * *
    (k) The complaint shall include:
    (1) A certification that the complainant has, in good faith, 
engaged or attempted to engage in executive-level discussions with the 
respondent to resolve the pole attachment dispute. Executive-level 
discussions are discussions among representatives of the parties who 
have sufficient authority to make binding decisions on behalf of the 
company they represent regarding the subject matter of the discussions. 
Such certification shall include a statement that, prior to the filing 
of the complaint, the complainant mailed a certified letter to the 
respondent outlining the allegations that form the basis of the 
complaint it anticipated filing with the Commission, inviting a 
response within a reasonable period of time, and offering to hold 
executive-level discussions regarding the dispute; and
    (2) A certification that the complainant and respondent have, in 
good faith, engaged in discussions to resolve procedural issues and 
deadlines associated with the pole attachment complaint process. Such 
certification shall include a statement that the complainant has 
contacted the Commission to disclose the results of the pre-complaint 
discussions with respondent.
    (3) A refusal by a respondent to engage in the discussions 
contemplated in this paragraph shall constitute an unreasonable 
practice under section 224 of the Act.
* * * * *
0
4. Amend Sec.  1.1409 by revising paragraph (c) to read as follows:


Sec.  1.1409  Commission consideration of the complaint.

* * * * *
    (c) The Commission shall determine whether the rate, term or 
condition complained of is just and reasonable. For the purposes of 
this paragraph, a rate is just and reasonable if it assures a utility 
the recovery of not less than the additional costs of providing pole 
attachments, nor more than an amount determined by multiplying the 
percentage of the total usable space, or the percentage of the total 
duct or conduit capacity, which is occupied by the pole attachment by 
the sum of the operating expenses and actual capital costs of the 
utility attributable to the entire pole, duct, conduit, or right-of-
way. The Commission shall exclude from actual capital costs those 
reimbursements received by the utility from cable operators and 
telecommunications carriers for non-recurring costs as set forth in 
sections 1.1404(g)(1)(xiii) and 1.1404(h)(1)(ix).
* * * * *
0
5. Amend Sec.  1.1416 by revising the section heading and paragraphs 
(b) and (c), and adding paragraph (d) to read as follows:

[[Page 22475]]

Sec.  1.1416  Imputation of rates; make-ready costs.

* * * * *
    (b) The cable television system operator or telecommunications 
carrier requesting attachment shall be responsible only for the actual 
costs of make-ready made necessary solely as a result of its new 
attachments.
    (c) The costs of modifying a facility shall be borne by all 
attachers and utilities that obtain access to the facility as a result 
of the modification and by all attachers and utilities that directly 
benefit from the modification. Each party described in the preceding 
sentence shall share proportionately in the cost of the modification. 
An attacher or a utility with a preexisting attachment to the modified 
facility shall be deemed to directly benefit from a modification if, 
after receiving notification of such modification as provided in 
subpart J of this part, it adds to or modifies its attachment. 
Notwithstanding the foregoing, an attacher or utility with a 
preexisting attachment to a pole, conduit, duct or right-of-way shall 
not be required to bear any of the costs of rearranging or replacing 
its attachment if such rearrangement or replacement is necessitated 
solely as a result of an additional attachment or the modification of 
an existing attachment sought by another party. If an attacher or 
utility makes an attachment to the facility after the completion of the 
modification, such party shall share proportionately in the cost of the 
modification if such modification rendered possible the added 
attachment.
    (d) If a utility performs make-ready, the utility shall make 
available to the cable television system operator or telecommunications 
carrier requesting attachment a schedule of its common make-ready 
charges that the new attacher may be charged.
0
6. Amend Sec.  1.1420 by revising paragraphs (c) and (d), paragraph 
(e)(1)(ii), and paragraphs (g)(3) and (4) to read as follows:


Sec.  1.1420   Timeline for access to poles, ducts, conduits, and 
rights of way.

* * * * *
    (c) Survey. A utility shall respond as described in Sec.  1.1403(b) 
to a cable television system operator or telecommunications carrier 
within 15 days of receipt of a complete application to attach 
facilities to its utility poles (or within the timelines set forth in 
paragraph (g) of this section). This response may be a notification 
that the utility has completed a survey of poles for which access has 
been requested. A complete application is an application that provides 
the utility with the information necessary under its procedures to 
begin to survey the poles.
    (d) Estimate. Where a request for access is not denied, a utility 
shall present to a cable television system operator or 
telecommunications carrier an estimate of charges to perform all 
necessary make-ready work within 7 days of providing the response 
required by Sec.  1.1420(c), or in the case where a prospective 
attacher's contractor has performed a survey, within 7 days of receipt 
by the utility of such survey.
    (1) A utility may withdraw an outstanding estimate of charges to 
perform make-ready work beginning 7 days after the estimate is 
presented.
    (2) A cable television system operator or telecommunications 
carrier may accept a valid estimate and make payment anytime after 
receipt of an estimate but before the estimate is withdrawn.
    (e) * * *
    (1) * * *
    (ii) Set a date for completion of make-ready that is no later than 
30 days after notification is sent (or 75 days in the case of larger 
orders as described in paragraph (g) of this section).
* * * * *
    (g) * * *
    (3) A utility may add 30 days to the survey period described in 
paragraph (c) of this section to pole attachment orders larger than the 
lesser of (i) 3000 poles or (ii) 5 percent of the utility's poles in a 
state.
    (4) A utility may add 45 days to the make-ready periods described 
in paragraph (e) of this section to larger orders up to the lesser of 
3000 poles or 5 percent of the utility's poles in a state.
* * * * *
0
7. Amend Sec.  1.1422 by revising the section heading and paragraphs 
(a) and (c) to read as follows:


Sec.  1.1422  Contractors for survey and make-ready.

    (a) A utility shall make available and keep up-to-date a reasonably 
sufficient list of contractors it authorizes to perform surveys and 
make-ready in the communications space on its utility poles. A utility 
shall separately identify on that list the contractors it authorizes to 
perform make-ready above the communications space on its utility poles.
* * * * *
    (c) A cable television system operator or telecommunications 
carrier that hires a contractor for survey or make-ready work shall 
provide a utility and existing attachers with a reasonable opportunity 
for their representatives to accompany and consult with the authorized 
contractor and the cable television system operator or 
telecommunications carrier requesting attachment.
* * * * *
0
8. Revise Sec.  1.1424 to read as follows:


Sec.  1.1424   Complaints by incumbent local exchange carriers.

    Complaints by an incumbent local exchange carrier (as defined in 47 
U.S.C. 251(h)) or an association of incumbent local exchange carriers 
alleging that a rate, term, or condition for a pole attachment is not 
just and reasonable shall follow the same complaint procedures 
specified for other pole attachment complaints in this part, as 
relevant. In complaint proceedings, there will be a rebuttable 
presumption that an incumbent local exchange carrier (or an association 
of incumbent local exchange carriers) is similarly situated to an 
attacher that is a telecommunications carrier (as defined in 47 U.S.C. 
251(a)(5)) or a cable television system for purposes of obtaining 
comparable rates, terms or conditions. In pole attachment rate 
complaint proceedings, it is presumed that incumbent local exchange 
carriers (or an association of incumbent local exchange carriers) may 
be charged no higher than the rate determined in accordance with 
section 1.1409(e)(2), unless a utility can rebut the presumption by 
demonstrating that this maximum rate presumption should not apply.
0
9. Add Sec.  1.1425 to subpart J to read as follows:


Sec.  1.1425   Review Period for Pole Access Complaints.

    (a) Except in extraordinary circumstances, final action on a 
complaint where a cable television system operator or 
telecommunications carrier claims that it has been denied access to a 
pole, duct, conduit, or right-of-way owned or controlled by a utility 
should be expected no later than 180 days from the date the complaint 
is filed with the Commission.
    (b) The Commission shall have the discretion to pause the 180-day 
review period in situations where actions outside the Commission's 
control are responsible for unreasonably delaying Commission review of 
an access complaint.

PART 51--INTERCONNECTION

0
10. The authority for part 51 continues to read as follows:

    Authority:  47 U.S.C. 151-55, 201-05, 207-09, 218, 220, 225-27, 
251-54, 256, 271, 303(r), 332, 1302.

[[Page 22476]]

Sec.  51.325  [Amended]

0
11. Amend Sec.  51.325 by removing paragraph (c) and redesignating 
paragraphs (d) and (e) as (c) and (d).

PART 63--EXTENSION OF LINES, NEW LINES, AND DISCONTINUANCE, 
REDUCTION, OUTAGE AND IMPAIRMENT OF SERVICE BY COMMON CARRIERS; AND 
GRANTS OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS

0
12. The authority for part 63 continues to read as follows:

    Authority: Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 
403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless 
otherwise noted.

0
13. Amend Sec.  63.60 by redesignating paragraphs (d) through (h) as 
(e) through (i), and adding new paragraph (d) to read as follows:


Sec.  63.60  Definitions.

* * * * *
    (d) Grandfather means to maintain the provision of a service to 
existing customers while ceasing to offer that service to new 
customers.
* * * * *
0
14. Amend Sec.  63.71 by adding paragraph (a)(5)(iii) and (a)(8), 
revising paragraph (c), removing paragraph (d), redesignating 
paragraphs (e) and (f) as (d) and (e), adding new paragraph (f), and 
revising paragraph (g) to read as follows:


Sec.  63.71  Procedures for discontinuance, reduction or impairment of 
service by domestic carriers.

    (a) * * *
    (5) * * *
    (iii) Notwithstanding paragraphs (a)(5)(i) and (ii) of this 
section, if any carrier, dominant or non-dominant, seeks to either 
grandfather legacy service operating at speeds lower than 1.544 Mbps; 
or discontinue, reduce, or impair legacy data service that has been 
grandfathered for a period of no less than 180 days consistent with the 
criteria established in paragraph (a)(8) of this section, the notice 
shall state: The FCC will normally authorize this proposed 
discontinuance of service (or reduction or impairment) unless it is 
shown that customers would be unable to receive service or a reasonable 
substitute from another carrier or that the public convenience and 
necessity is otherwise adversely affected. If you wish to object, you 
should file your comments as soon as possible, but no later than 10 
days after the Commission releases public notice of the proposed 
discontinuance. You may file your comments electronically through the 
FCC's Electronic Comment Filing System using the docket number 
established in the Commission's public notice for this proceeding, or 
you may address them to the Federal Communications Commission, Wireline 
Competition Bureau, Competition Policy Division, Washington, DC 20554, 
and include in your comments a reference to the Sec.  63.71 Application 
of (carrier's name). Comments should include specific information about 
the impact of this proposed discontinuance (or reduction or impairment) 
upon you or your company, including any inability to acquire reasonable 
substitute service.
* * * * *
    (8) For applications to discontinue, reduce, or impair a legacy 
data service that has been grandfathered for a period of no less than 
180 days, in order to be eligible for automatic grant under paragraph 
(f) of this section, an applicant must include in its application a 
statement confirming that they received Commission authority to 
grandfather the service at issue at least 180 days prior to filing the 
current application.
* * * * *
    (c) The carrier shall file with this Commission, on or after the 
date on which notice has been given to all affected customers, an 
application which shall contain the following:
    (1) Caption--``Section 63.71 Application'';
    (2) Information listed in Sec.  63.71(a) (1) through (4) above;
    (3) Information listed in Sec.  63.71(a) (6) through (8) above, if 
applicable;
    (4) Brief description of the dates and methods of notice to all 
affected customers;
    (5) Whether the carrier is considered dominant or non-dominant with 
respect to the service to be discontinued, reduced or impaired; and
    (6) Any other information the Commission may require.
* * * * *
    (f) Notwithstanding paragraph (e) of this section, an application 
filed by any carrier seeking to grandfather legacy service operating at 
speeds lower than 1.544 Mbps for existing customers shall be 
automatically granted on the 25th day after its filing with the 
Commission without any Commission notification to the applicant unless 
the Commission has notified the applicant that the grant will not be 
automatically effective. For purposes of this section, an application 
will be deemed filed on the date the Commission releases public notice 
of the filing.
    (g) An application seeking to:
    (1) Discontinue, reduce, or impair a service for which the 
requesting carrier has had no customers or reasonable requests for 
service during the 60-day period immediately preceding the filing of 
the application; or
    (2) Discontinue, reduce, or impair a legacy data service that has 
been grandfathered for no less than the 180-day period immediately 
preceding the filing of the application, shall be automatically granted 
on the 31st day after its filing with the Commission without any 
Commission notification to the applicant, unless the Commission has 
notified the applicant that the grant will not be automatically 
effective.
* * * * *
[FR Doc. 2017-09689 Filed 5-15-17; 8:45 am]
 BILLING CODE 6712-01-P