Fixing the Fixes for Pole Attachments

By Michael O’Rielly

 

Fights over pole attachments — obtaining access and avoiding outrageous rates — have proven to be a serious roadblock to broadband providers trying to build networks to the unserved in our nation.  That’s not just my analysis after listening to enraged parties but the result of numerous public stories and examples from providers.  In fact, the Federal Communications Commission (FCC or the agency) has accumulated an extensively full record after years of taking complaints by those trying to facilitate service to those Americans without.  Similarly, the Commission, which plans to take action next week on a pending item, stated in its draft that, “Key to these broadband projects are the utility poles that support the wires and wireless equipment that carry broadband to American homes and businesses.”  And West Virginia’s State Broadband Office leadership, for example, has publicly declared that reaching pole attachment agreements is the biggest source of delay in deploying federal broadband funding.  Given this, it’s a bit surprising that the Commission seems to be pulling its punches on obvious steps to use its pole attachment authority in ways that would expedite and expand builds.

 

Make no mistake, providing a clearer and cleaner fix to pole attachment disagreements, no matter however reserved the agency may be, is a good thing and deserves praise.  But like all difficult policy calls at the FCC, if you are going to take the criticism, why not do the right thing, if authorized to do so?  Certainly, the Commission didn’t hesitate to push the envelope beyond recognition on the so-called Net Neutrality and Digital Discrimination items — despite the legitimate concerns raised, massive harms identified, and strong opposition presented, including from me.  So why hold back on pole attachments when resolving open issues would do so much good?   

 

Here are just a few areas the Commission could and should have gone further. 

• Bulk Pole Requests — The Commission has an arbitrary threshold of 3,000 poles and fewer for defined processing timelines and getting relief under its make-ready and other Commission procedural remedies.  Yet anyone seeking to build broadband networks in sparsely populated, large areas often seeks more than this threshold.  What do they get under the Commission’s item? Bunk, with the whole issue shoved to the Further Notice and faint language that the agency expects all parties to act in good faith.  If there is a recognition that requests for a number of pole attachments below the threshold deserve regulatory engagement, what logical reasons can be provided to punt on a key matter with an untimed promise of someday, just maybe the agency could possibly consider resolution?Everyone knows Further Notices come with a lower expectation of completion. The only justification I can come up with is the belief that big requests for poles tend to come from larger companies and thus these entities have some leverage in negotiations with pole owners.  Yet, most often the pole owners have absolutely no incentive to strike a deal, especially if the request is made from a larger broadband provider.  Arguably, smaller providers getting run over by pole owners can make a compelling press story.  Few people seem to cry foul over a larger provider being taken to the cleaners by pole owners, even if these same owners are trying to become a broadband competitor.  This is more frustrating if the goal of universal broadband coverage is to be truly supported.  Can a broadband provider break up larger requests into smaller bites below 3,000 to qualify for Commission action or can they at least get help for the first 3,000 poles under Commission procedures?  I don’t see why not.  At a minimum, the Commission could set a hard deadline (e.g., 6 months) for resolving this portion of the Further Notice.  While it should be fixed in the Report and Order portion, it could provide more certainty that some positive decision will be forthcoming, especially as federal, state and local broadband deployment funding is used to support large scale broadband buildouts involving thousands and thousands of poles.
• Cost Allocation for Replacing Filled Poles — Under the current pole attachment regime, replacing filled poles to respond to new requests heavily rests with the pole owner.  But who gets to pay for a replacement pole? The new broadband provider seeking access, of course.  Yet it’s the pole owner who gets great benefit with an updated asset for free. How is that for fair or even justifiable?  If a pole truly needs to be replaced to address new capacity requests, the costs should be shared. Without crafting a sustainable fix, broadband providers can see their pole costs explode, making builds completely uneconomical.  While the proposed order provides some clarity on the allocation of costs around “red tagged” poles, the Commission has left a gaping hole around how to fairly allocate costs for pole replacement in many other situations.  The likely result of the proposed order is that the broadband provider costs will continue to balloon making it difficult to reach unserved communities. If the Commission is not going to directly resolve this reoccurring problem, shouldn’t it at least add it to the Further Notice with the relevant questions and necessary presumptions?  
• Burden for Replacement Poles — On a related matter, pole owners are given too much latitude to determine whether a replacement pole is needed.  Why is that?  They often have a perverted interest in forcing broadband provider to pay to upgrade its physical poles. Shouldn’t there be some basic threshold burden on pole owners before declaring a pole needing replacement, and therefore passing the bill to the new attacher?  If the attacher is not the reason for replacement, why in God’s name should owner not pay for it?  Assuming proper burdens here would be good policy. Yet, despite the industry ask to do so, nothing made it into the item. Huh.

 

This represents just three segments of pole attachment fights demanding added attention and positive resolution.  There are many more.  And don’t get me started on the exemption in current law for certain poles being governed by longstanding FCC procedures.  At least in that case, the Commission may have a legit reason to withhold action — even if Congress does not. 

 

* * *

 

For the last 20 or so years, almost every policymaker I know has sought greater broadband availability.  Some go as far as calling broadband a necessity on par with water and food.  But in the tedious process to make this a reality, somehow the requisite nerve turns to caution. Although not easy, improving the FCC’s pole attachment structure is critical. Doing so in a way that maximizes broadband buildout — like the three edits I and others have suggested — would go a long way to making broadband universal. 

* As always, nothing in this document is intended to influence or advocate for actions before the staff at the Federal Communications Commission. These views are raised publicly for general discourse.

WANTED: A BOLD U.S. SPECTRUM POLICY 

By Michael O’Rielly 

Americans are infatuated with their wireless devices and the accompanying services.  Consider that industry stats show consumers possess over 524 million wireless devices in a 275 million population above 15 years old and 97% of Americans own a cellphone.  For many consumers, staying connected from dawn to dusk enhances productivity, communications, entertainment, and more.  But what if government inaction generates the U.S. industry’s contraction, or worse, collapse?  That’s exactly the situation today as U.S. policymakers are seemingly stuck on how best to find more wireless spectrum for commercial purposes, a necessary ingredient for successful wireless recipes.  And the rest of the world will happily take the profits from wireless’ popularity while eagerly preparing to scoop the U.S. in the next wireless revolution.  Responsively, U.S. policymakers should kill its stagnation by pursuing an exceptionally bold spectrum policy that bets on American wireless ingenuity to lead the global marketplace.    

 

There is wide bipartisan recognition from Congress and the Biden Administration that America must identify and reallocate more spectrum for commercial services, be it licensed, unlicensed, or shared, to meet growing consumer demand or endure major consequences.  The undeniable truth is that the current bucket is almost bare.  Study after study shows that we lack the requisite spectrum inventory to enable and fulfill future wireless technologies across the board.  Without strong action on spectrum, congestion on existing allocations will slow consumer connections, strain wireless networks, and shutter device development.  For consumers, their smartphones and tablets will be like trying to operate most ten-year-old laptops: sluggish and frustrating.  On a larger scale, this dearth will punish the functionality and competitiveness of American businesses, thereby serving as a massive drain on U.S. GDP.  Few people give sufficient recognition to the role played by the wireless industry in our economy.         

 

Sadly, the global story is equally disturbing.  With China leading the charge, Japan, France, South Korea, Britain and others are pushing aggressively to allocate more commercial spectrum domestically wireless services.  These countries want to seize on any U.S. passivity in order to steal the lead on 5G and corner the nascent 6G market.  They also see this as way to ensure their consumers have the best and most capable wireless technologies.     

 

Similarly, people should know that China is trying to find friendly nations as the world prepares for the next iteration of the World Radiocommunication Conference (WRC), a quadrennial international spectrum coordination effort to be held in just weeks from now.  The country’s goal is fairly straight-forward: demand new spectrum allocations that prop-up Chinese wireless companies while undercutting the U.S. wireless leadership across licensed and unlicensed spectrum bands. 

 

So, what does going bold mean?  For starters, the Administration must conclude its “spectrum strategy” after two-plus years in the making.  Better yet, it should up the ante to identify 2500 or 3000 MHz of new commercial spectrum and make sure each band is available in the nearer term rather than just vaguely plausible someday for reallocation.  Additionally, the Administration needs to stop coddling Federal agency spectrum users.  Their arguments have proven empty and driven by a fear of missing out, not mission critical threats.  These chicken-little prognosticators scream over spectrum changes to distant bands and phantom interference, and their opposition must not be the basis for resolving disputes with the private sector.  Further, bold means taking WRC-23 more seriously, especially heightening the level of diplomatic participation.  Fumbling the U.S. appointment of a new delegation head has been a problem of our own making.  To rectify, why isn’t Vice President Harris, Secretary Blinken, or Secretary Raimondo showing up in Dubai to secure American wins?   

 

Being audacious on wireless issues can and should be done without undermining recent licensed, unlicensed, and shared spectrum success stories.  Instead, this should be an opportunity -- a call to arms, if you will -- to sidestep our micro-squabbles and attack the commercial shortage problem head-on.  Our purpose should be to push current Federal users out of underused bands and shrink their footprints in line with modern technology.   

 

True and persuasive leadership is actually very hard.  Quite frankly, it’s easier to be called a leader or be elected to a position of leadership than to actually lead.  On spectrum policy, we need real and immediate leadership from the White House and Congress that releases new commercial bands for all types of services.  Doing so will set the U.S. in a position of strength and stymie other countries attempts to break through in the global wireless race. 

CONGRESS SHOULD FINISH & PAY FOR RIP & REPLACE 
By Michael O’Rielly 
  

The U.S. Government has emphatically declared, via various actions and enacted legislation, that certain foreign government involvement in the American homeland can pose substantial dangers to our nation and its citizens.  Indeed, these exact findings have been applied to the U.S. communications sector.  Accordingly, Congress and the current Administration have taken monumental steps in recent years to expel certain companies from offering service in the U.S. and mandated that troubling equipment, mostly from China, be removed from U.S. commercial communications networks.  Despite this bold activity, Congress hasn’t matched its policy outrage and mandates with the necessary funding to actually execute its directives.  People should know that over 60 percent of the network costs to implement what’s best known as “Rip & Replace” is still unfunded and our overall networks are still vulnerable.  While I provided greater deference to Congress in the past on this issue, speed is of the essence.  Congress needs to honor its commitments and provide eligible wireless providers with the outstanding billions in relief after years of being informed of this deficiency.   

 

The potential and actual abuse of U.S. communications networks can cause immeasurable harm.  With improper access, bad actors could disrupt, stop, and/or manipulate communications between and among Americans.  An inability to trust or rely on the content of such communications would wreak havoc on everyday commerce and personal lives.  Moreover, the collection of sensitive communications on a select set of Americans (or alternatively everyone) could help build individual dossiers for future exploits.  Equally troubling, foreign despot regimes could attempt to use affected wireless communication networks not only as entry points, but to spread its nefarious propaganda of Anti-American messages.  Worse yet, compromised equipment could be used as mechanism to stymie or intercept important communications from U.S. military and intelligence units.  To be clear, these are not my made-up reasons for removing questionable equipment from our communications system, but the very ones Congress used in the first place to enact the Rip & Replace program.  And nothing in the four years since its enactment has lessened these concerns. 

 

As a former congressional staffer, I am acutely aware of instances when Congress has promised something and then missed important deadlines.  In some respects, it’s become a new Washington hobby: let a deadline pass and then try to put the pieces back together with as little damage as possible.  Rarer is the case, thankfully, in which Congress has mandated obligations on the private sector with promises to pay for reasonable costs and then did not deliver.  Perhaps the act of short-changing the first tranche of $1.9 billion in funding on the front end was a way to ensure that overall Rip and Replace costs would not get out of control.  Communications practitioners may remember a similar time when consumer set top box coupons for the DTV conversion ran out of funds, thereby requiring Congress to allocate targeted resources to meet the program’s real needs.  With Rip & Replace, everyone now knows the true costs, as certified by the Federal Communications Commission, and the undeniable shortfall stands at $3.08 billion.  And making a challenging situation worse, all participants are on the clock following deadlines last July, leaving less than a year to complete the removal and replacement of this equipment.  That’s an impossible task given the funding shortfall.  Unless Congress acts soon, the program will fail, forcing carriers to “rip” but not “replace” and eliminate wireless service in areas where it’s incredibly important.      

 

The semi-good news is that congressional leaders in both parties seem to recognize the need to fix this situation.  Members point to various legislative vehicles that could be used to carry the needed Rip & Replace funding.  Some want to use the annual appropriations process and others see options with legislation to extend spectrum auction authority, an upcoming congressional supplemental appropriations, or as part of an extension of the Affordable Connectivity Program.  Yet, none of these efforts seems likely to finish in the near term for a multitude of reasons.    

 

This leaves eligible wireless providers in a very precarious position.  Many of these companies are smaller in size and cover more rural and remote terrain.  In our hyper-inflation economy, finances are tighter, preventing wireless operators from bankrolling the costs of removing untrusted equipment or purchasing from trusted vendors on the promise that Congress will act someday.  These companies want to upgrade their networks to remove any stigma of subpar quality as well as modernize for advanced 5G and eventually 6G.     

 

The Rip & Replace program, as required by law, is about plugging a defined weakness in our nation’s communications networks.  Consequently, Congress has the obligation to move away from promising to fully compensate eligible providers and actually accomplishing it by including the requisite funding on the first moving legislative train, such as a stopgap Continuing Resolution.  Anything less puts Americans at unnecessary risk.