FCC Adopts Pole Attachment Rules and Seeks Further Comment

On December 13, 2023, the FCC adopted an Order, Declaratory Ruling, and Notice of Proposed Rulemaking (“NPRM”)1 regarding the pole attachment process, which is key to the FCC’s efforts to support broadband infrastructure. Specifically, the FCC established a new, expedited process for the Commission’s review and assessment of pole attachment disputes that impede or delay broadband deployment, and adopted a process to provide communications providers with information about the status of the utility poles they plan to use in their build outs.

The Order established the Rapid Broadband Assessment Team (“RBAT”), a Commission intra-agency rapid response team that provides coordinated review and assessment of pole disputes that are impeding or delaying the deployment of broadband facilities. The RBAT will be charged with expediting the resolution of these disputes by swiftly engaging key stakeholders, gathering relevant information, distilling issues in dispute, and recommending to the parties, where appropriate, an abbreviated mediation process, placement of a complaint on the Accelerated Docket, and/or any action that the RBAT determines will help the parties resolve their dispute. Additionally, the new rules require utilities to provide to potential attachers, upon request, the information contained in their most recent cyclical pole inspection reports, or any intervening, periodic reports created before the next cyclical inspection, for the poles covered by a submitted attachment application. These new rules will take effect 30 days after publication in the Federal Register.

The FCC also issued a Declaratory Ruling clarifying: 1) what constitutes “red tagging” and when pole replacements are not “necessitated solely” by a new attachment; 2) attachers’ right to access documentation regarding utility easements; and 3) the applicable timelines for the processing of attachment requests for 3,000 or more poles. These clarifications take effect immediately.

In the NPRM, the FCC seeks comment on ways to further facilitate the approval process for pole attachment applications to enable speedier broadband deployment. Specifically, the Commission seeks comment on its proposal to adopt a defined make-ready timeline for orders that exceed 3,000 poles or 5 percent of the utility’s poles in a state, and whether an additional 90 days is sufficient. The FCC additionally seeks comment on whether it should modify its self help rules to enable prospective attachers to access poles more quickly. Comments and Reply Comments are due on February 13, 2024 and February 28, 2024, respectively.

If you would like to file Comments or would like to discuss this issue in greater detail, please contact Dee Herman at [email protected] or Shannon Forchheimer at [email protected].

[1] See Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17-84, , Fourth Report and Order, Declaratory Ruling, and Third Further Notice of Proposed Rulemaking (2023).