Among the items being considered at the upcoming April 12, 2019 Federal Communications Commission (“FCC” or “Commission”) open meeting is possible regulatory forbearance of certain legacy regulatory and structural requirements applicable to Bell Operating Companies (“BOCs”), price cap local exchange carriers (“LECs”), and independent rate-of-return carriers (“RoR carriers”). Acting on a nearly year-old USTelecom petition, the FCC’s draft Memorandum Opinion and Order (“Order”) proposes to forbear from enforcement of three regulatory requirements: (i) that independent RoR carriers offer in-region long distance service through a separate affiliate (“structural separations”); (ii) that BOCs and price cap LECs do not discriminate in service provisioning intervals and that they file special access provisioning reports; and (iii) that BOCs provide nondiscriminatory access to poles, ducts, conduits, and rights-of-way (collectively, “pole attachments”). However, the draft Order declines to decide on USTelecom’s request for forbearance from certain network unbundling and resale requirements. The Commission’s deferral on the unbundled network elements (“UNE”)/resale issue is not surprising in light of the significant industry and consumer opposition to this aspect of USTelecom’s petition. With the exception of the few comments supporting USTelecom’s petition, the vast majority of comments were relatively silent regarding the other forbearance requests. If adopted, the draft Order will be effective upon release.

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After a year of heated debate between pole owners and service providers, the FCC is poised to adopt a one-touch make-ready (“OTMR”) process for the “vast majority” of pole attachments at its meeting on August 2, 2018. Late last week, the FCC released a draft Order and Declaratory Ruling that would implement a streamlined process for service providers to bypass certain pole owner requirements in order to gain access to poles to attach new facilities. Chairman Pai has touted the new procedure as hastening broadband deployment by allowing for faster, cheaper pole attachments. The FCC expects significant growth in pole attachments as service providers install the small cells necessary to support 5G technologies.

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Highlighting the need for rapid infrastructure deployment to meet growing consumer data demands and support future 5G services, the Federal Communications Commission (“FCC”) unanimously adopted a Report and Order at its November 16, 2017, meeting to eliminate historic preservation review of replacement utility poles under certain conditions. The FCC’s limited action marks the first decision to come out of the much broader FCC rulemaking proceeding initiated earlier this year to foster wireless infrastructure investment and deployment. The item also consolidates the FCC’s historic preservation review requirements into a single rule to aid compliance.

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On August 16, 2017, the U.S. District Court for the Western District of Kentucky granted summary judgment in favor of the Louisville Metro Council to uphold the city’s recently-enacted ordinance amendments providing for “one-touch make-ready” (“OTMR”) on poles in the City’s public rights-of-way.  The ordinance had been challenged by AT&T, which alleged that in enacting it, the Louisville Metro Council exceeded its authority under state and federal law.  The victory is a win for providers seeking faster access to poles when facing routine and other make-ready work because it obviates the need for a number of procedural steps that many see engendering delays and thwarting new attachers’ desire to build our or augment their networks promptly to provide customer services.  The decision is the first in the country to review an OTMR ordinance, although other challenges to OTMR ordinances are pending.

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On April 20, 2017, the Federal Communications Commission (“Commission” or “FCC”) initiated three interrelated proceedings in new WC Docket No. 17-84 that aim to “better enable broadband providers to build, maintain, and upgrade their networks” and transition from legacy copper networks to next-generation networks and services. The docket consists of three interrelated parts: a Notice of Proposed Rulemaking (“NPRM”), Notice of Inquiry (“NOI”), and Request for Comment (“RFC”) (collectively, the “Wireline Infrastructure Proceeding”). The Commission hopes to promote “more affordable and available Internet access and other broadband services.”

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The FCC’s modification to the telecommunications carrier pole attachment rate formula have been published in the Federal Register and are set to take effect on March 4, 2016.  As we reported in December, the FCC issued an Order on Reconsideration modifying the cost allocators to bring parity between the telecommunications and cable attacher rates.