On Thursday, November 18, 2021, just days after President Biden signed the bi-partisan Infrastructure Investment and Jobs Act (aka “Infrastructure Act”) into law, the Federal Communications Commission’s Wireline Competition Bureau (WCB) released a Public Notice setting forth a 60-day rulemaking process designed to implement the statute’s Affordable Connectivity Program (“ACP”) provisions.

While the final rules

iStock_000006131068MediumFederal Communications Commission (FCC or Commission) Chairman Ajit Pai marked his first open meeting as Chairman by announcing a new Broadband Deployment Advisory Committee (Committee), which is intended to advise the FCC on accelerating the deployment of high-speed internet access in communities across the country.  Designed to make recommendations to reduce and remove regulatory barriers to infrastructure investment, the Committee will develop specific reforms to the FCC’s pole attachment rules, identifying unreasonable regulatory barriers to broadband deployment, ways to encourage local governments to adopt deployment-friendly policies, and other reforms within the Commission’s authority, including provisions under the Middle Class Tax Cut and Job Relief Act of 2012.
Continue Reading FCC Chairman Pai Announces Creation of a Broadband Deployment Advisory Council

The FCC on Wednesday found General Communications, Inc. (“GCI”) apparently liable in the amount of $20,000 as a result of an unaddressed lighting malfunction on one of the carrier’s communications towers.  In the Notice of Apparent Liability (“NAL”), the Commission found that as a result of daytime lights on the 56 meter tower being out, GCI committed several rule violations: failure to (1) exhibit the required daytime medium intensity obstruction lighting on its antenna structure, (2) monitor obstruction lighting on a daily basis or maintain a functioning alarm system, and (3) notify the Federal Aviation Administration (“FAA”) of the lighting outage, which the FCC considered as being known as a result of the monitoring requirements.  The matter came to light when an Enforcement Bureau field agent observed the tower structure was not lit during daytime hours on two consecutive days in September 12.  The agent proceeded to contact the FAA and learned that no Notice to Airmen (“NOTAM”) had been issued as a result of the outage.  The FAA issued the NOTAM immediately after being contacted. Only after being contacted by the Bureau’s Anchorage Office did GCI investigate and replace a failing a capacitor on the lighting control board and proceed to install a remote lighting monitoring and alarm system.

Continue Reading Failure to Maintain Tower Lighting May Cost GCI $20,000

After a lengthy hiatus of more than a decade following Office of Management and Budget (“OMB”) review of several provisions in the FCC’s pole attachment complaint rules having information collection requirements, including rules placing obligations on certain cable television operators and pole owners, the Commission earlier this week published notices making those rules effective. In 1998 and 2000, the Commission modified its pole attachment regulations to require, among other things, that cable operators notify pole owners upon commencing to offer telecommunications services and that pole owners and other utilities, within 30 days of a request from a telecommunications carrier or cable operator, provide information to support a rate, term, or condition for attachment to or occupation of a pole, duct, conduit, or other right-of-way of the pole owner or utility.

Continue Reading FCC Pole Attachment Rule Provisions Obligating Poles Owners to Make Information Regarding Rates Available Take Effect after a Long Wait

Mike Dover contributed to this blog post.

The Federal Communications Commission continues to pave additional avenues for building out wireless broadband networks and installing other high speed links, but questions linger over the authority of state and local governments to review and even block wireless infrastructure trying to capitalize on the FCC decisions. For example, on August 12, the Commission revised its Part 15 rules, releasing a Report and Order in ET Docket No. 07-113 that, among other things, allows unlicensed transmitters at 57-64 GHz to operate outdoors at higher power levels provided the equipment meets certain threshold requirements. The Commission envisions these regulatory changes will better support very high speed wireless data transfer and multimedia streaming over longer distances than previously could be achieved at these frequencies, as well as make the 60 GHz millimeter wave band more useful for 4G wireless backhaul connections.

Continue Reading Questions About Scope of Local Authority May Come to Fore Given Expanded Opportunities for Unlicensed Deployments

In a much anticipated decision with potentially widespread ramifications across all federal agencies charged with implementing federal statutes, the United States Supreme Court has permitted the so-called “shot clock” rules of the Federal Communications Commission (“FCC” or “Commission”) applicable to wireless siting applications to remain in effect. By a 5-4 margin on May 20, 2013

The suspense did not last long.  Less than five weeks after a spirited oral argument before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit (the “Court”) on January 23, 2013, the Court today affirmed key aspects of the Federal Communications Commission’s April 2011 Report and Order and Order on Reconsideration (“Report and Order”).  The Report and Order had modified major portions of the Commission’s pole attachment rules implementing the Pole Attachment Act, codified as Section 224 of the Communications Act of 1934 (the “Act”). 

The American Electricity Power Services Corporation and other electric utility companies (“Petitioners”) challenged three aspects of the FCC’s Report and Order.  (1) The Report and Order interpreted Section 224(b)(1) of the Act, which authorizes the Commission to regulate the rates, terms and conditions of “pole attachments” and assure that they are “just and reasonable,” to apply to incumbent local exchange carriers (“ILECs”) as “providers of telecommunications services.”  Building on this interpretation, the Report and Order enabled ILECs to bring complaints before the FCC against investor-owned utility pole owners on whose poles they are attached, even though the statute excludes ILECs from the definition of “telecommunications carrier” for purposes of Section 224. (2) The Commission adopted a new pole attachment rate formula applicable to telecommunications carriers (the “telecom rate formula”) specifically designed to bring the telecom rate down to the same level as that paid by cable operators when the FCC’s presumed number of attachers is used in the telecom rate formula.  (3) The Report and Order modified the FCC’s rules, which had limited to compensatory damages to be awarded only from the date of a complaint to the FCC going forward, to allow damages to be awarded for a period prior to the date of the complaint consistent with the applicable statute of limitations.

The Court denied all three challenges in their entirety, applying Chevron deference to the Commission’s interpretations.  The Court’s opinion, quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), underscored that where the FCC modifies its regulations, as it did in the Report and Order, the hurdle the Commission must clear is a “modest” one.  Specifically, the Commission “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.”

Continue Reading Appellate Court Upholds 2011 Pole Attachment Order Lowering the Telecom Pole Attachment Rate and Paving the Way for ILEC Complaints against Electric Utility Pole Owners