Make-ready work includes pole replacements under Maine rules, argued the telecom industry in Monday comments in docket 2018-00136 at the Maine Public Utilities Commission. The PUC asked if replacement of utility poles is make-ready under Section 7(A) of Chapter 880 of its rules, and if so, if such replacements are subject to that section’s exemption for “non-commercial, non-competitive use consistent with the police power of [a] municipality.” The rule is unambiguous that make-ready work includes pole attachments, consistent with rules in five other states and the FCC, CenturyLink said. "It is also consistent with the plain meaning, common usage and industry practice when it comes to make-ready work." ExteNet, Comcast and Charter Communications agreed, with the cable companies commenting, “This purely legal inquiry is not difficult or complicated, nor should it take long.” Central Maine Power disagreed. “It would be inappropriate to conclude that the costs associated with pole replacements are subject to the exemption in Section 7(A) regardless of whether or not the municipal activity is considered to be for non-commercial, non-competitive purposes consistent with the police power of a municipality,” it said. The PUC would need to hold a rulemaking to include pole replacements. "Even with such rulemaking, the Commission may be legally constrained if it attempts to impose the Section 7(A) exemption for the pole replacement costs."
States joined local government officials sounding the alarm over an FCC plan to ban state and local moratoriums on new wireless and wireline facilities (see 1807240035 and 1807130045). The draft order also includes one-touch, make-ready rules and is set for vote at next Thursday’s commissioners' meeting. States’ interest in pole attachments is increasing as they look to spur broadband, state commissioners said in interviews. Pennsylvania sees a need to take a stronger role in pole attachment disputes as part of that effort, said Public Utility Commission member Norman Kennard.
The FCC's referring a deal to its administrative law judge traditionally has been the kiss of death to a transaction, but some see Chairman Ajit Pai's announcement that he has circulated a draft hearing designation order (HDO) on Sinclair's $3.9 billion buy of Tribune (see 1807160023) as possibly aimed more at stopping the deal as it's currently crafted. It also could put the deal on the back burner for now.
FCC Chairman Ajit Pai proposed rules providing a new framework for “the vast majority” of pole attachments under federal jurisdiction by imposing a one-touch, make-ready” (OTMR) regime. An accompanying declaratory ruling attacks local or state moratoriums on new wireless and wireline facilities. The order and declaratory ruling are set for a vote at commissioners’ Aug. 2 meeting (see 1807110053) along with items on broadcast incubators, repacking reimbursement, a telehealth item and a spectrum/5G auction-related action.
Commissioners approved 4-0 an NPRM and order Thursday that moves the U.S. a step closer to opening the C-band, key mid-band spectrum for 5G. The FCC will start by taking a snapshot of the 3.7-4.2 GHz band, though as expected the agency relaxed its reporting requirements for satellite companies from what was in the draft order (see 1807060025). Rather than asking for additional data from fixed satellite service earth stations, the FCC will require them only to certify that the information the agency has is up-to-date. Space station operators will have to provide basic information. The NPRM asks whether the FCC should seek additional data from satellite operators, officials said.
Supreme Court nominee Brett Kavanaugh is likely to raise the bar for FCC regulations if confirmed, attorneys said after President Donald Trump nominated the appellate judge Monday evening to replace retiring Justice Anthony Kennedy (see 1807090060). Not only would Kavanaugh be expected to seek to rein in Chevron deference to agency expertise, but he also is seen as a strong advocate of industry First Amendment free-speech rights, based on his lengthy record at the U.S. Court of Appeals for the D.C. Circuit (see 1807040001). He believes broadband is a Communications Act Title I information service, not a Title II telecom service subject to common-carrier regulation. Some on Capitol Hill and among communications groups oppose the nominee.
There’s no legal reason that the FCC should wait for the U.S. Court of Appeals for the D.C. Circuit to rule on the UHF discount before deciding on Sinclair/Tribune, said the broadcasters in a joint opposition filing posted Friday in docket 17-179, responding to petitions to deny their proposed deal (see 1806210071). “Petitioners provide no legal support or precedent for this argument -- as there is none,” Sinclair and Tribune said. The broadcasters also countered attacks on their divestiture plans, local news broadcasts and scale. Delaying decisions over pending court rulings would bring the FCC “to a standstill,” Sinclair and Tribune said. “There has hardly been a time over the past twenty years when there was not an FCC rulemaking pending or subject to appeal.” The D.C. Circuit is expected to rule on the matter in August or September, but the Sinclair/Tribune comment period will wrap up this month.
Calls to downgrade the FCC’s kidvid draft NPRM to a notice of inquiry are an attempt by Senate Democrats and advocacy groups to inject “unnecessary delay and distraction,” into the proceeding (see 1806290057), Commissioner Mike O’Rielly said in a commentary in the National Review Thursday. The same information gathering results can be achieved by an NPRM, he said. Criticisms that the kidvid proposals would reduce the availability of high quality content for kids aren’t based on evidence, O’Rielly said. Data provided to the FCC shows “only 0.6 percent of American households with children do not have access to either cable or Internet services -- and that number is even smaller for low-income, minority households,” O’Rielly said. The information coming in to the FCC indicates “broadcasters are heavily burdened by our rules, while most American households and children receive questionable benefits from them,” O’Rielly said. “I stand ready to work with anyone, within reason, from now until we vote on this rulemaking to reframe or ask additional questions that will build the most robust record possible.”
For now, the 6th U.S. Circuit Court of Appeals should keep in abeyance NCTA's appeal of the FCC's 2008 cable leased access order pending the agency completing a rulemaking that contemplates vacating the order, the agency said in a docket 08-3369 status report (in Pacer) filed Monday. It said if the FCC decides to vacate the NCTA-challenged order, the case will become moot. Commissioners in June adopted a Further NPRM proposing to vacate the order (see 1806070021).
CTIA urged the Maine Public Utilities Commission to quickly open a rulemaking on pole attachment rates, once the PUC gets data from pole owners about effects of adopting FCC rate formulas. But Consolidated Communications, recent acquirer of pole owner FairPoint Communications, said it doesn’t want to provide the data. In comments last week in docket 2018-00010, CTIA supported a Maine Fiber proposal to direct large pole owners to say what their rates would be under the FCC rate method (see 1805150016). “The need to remove barriers to wireless deployment and attach new and evolving technologies to utility poles makes it all the more important that the Commission establish regulatory certainty by amending the rates portion of the pole attachment rule,” CTIA said. The Maine Office of the Public Advocate agreed pole owners should provide data on what their rates would be under the FCC method. “The OPA supports a rate formula that requires that attachers be charged for the space they use, plus a reasonable contribution to the common cost of the pole,” it said. But Consolidated said the data sought isn’t relevant and would burden pole owners. The FCC formula “arbitrarily reduces rates by 33% and 66% to put it in line with a favorable cable rate that was adopted in cable’s infancy in order to accelerate cable deployment,” Consolidated said. The actual rate doesn’t matter as long as the policy doesn’t discriminate, it said. The Telecom Association of Maine also took issue with Maine Fiber’s approach, saying it “will simply lead to a morass of conflicting data as different providers utilize differing assumptions when calculating their pole costs as well as their interpretations of how the FCC Rules should be applied which will lead to further arguments among the parties and, ultimately, delay the process.”