46812 Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 17–84; WT Docket No. 17– 

79, FCC 18–111] 

Accelerating Wireline and Wireless 

Broadband Deployment by Removing 

Barriers to Infrastructure Investment 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) adopts a new framework 

for the vast majority of pole attachments 

governed by federal law by instituting a 

‘‘one-touch make-ready’’ regime, in 

which a new attacher may elect to 

perform all simple work to prepare a 

pole for new wireline attachments in the 

communications space. This new 

framework includes safeguards to 

promote coordination among parties 

and ensures that new attachers perform 

the work safely and reliably. The 

Commission retains the current multiparty pole attachment process for 

attachments that are complex or above 

the communications space of a pole, but 

makes significant modifications to 

speed deployment, promote accurate 

billing, expand the use of self-help for 

new attachers when attachment 

deadlines are missed, and reduce the 

likelihood of coordination failures that 

lead to unwarranted delays. The 

Commission also improves its pole 

attachment rules by codifying and 

redefining Commission precedent that 

requires utilities to allow attachers to 

‘‘overlash’’ existing wires, thus 

maximizing the usable space on the 

pole; eliminating outdated disparities 

between the pole attachment rates that 

incumbent carriers must pay compared 

to other similarly-situated cable and 

telecommunications attachers; and 

clarifying that the Commission will 

preempt, on an expedited case-by-case 

basis, state and local laws that inhibit 

the rebuilding or restoration of 

broadband infrastructure after a disaster. 

DATES: Effective October 15, 2018, 

except for Sections III.A–E of the Third 

Report and Order, which will be 

effective on the later of February 3, 2019 

or 30 days after the announcement in 

the Federal Register of OMB approval of 

information collection requirements 

modified in this Third Report and 

Order. OMB approval is necessary for 

the information collection requirements 

in 47 CFR 1.1411(c)(1) and (3), (d) 

introductory text, (d)(3), (e)(3), (h)(2) 

and (3), (i)(1) and (2), (j)(1) through (5), 

1.1412(a) and (b), 1.1413(b), and 

1.1415(b). The Commission will publish 

a document in the Federal Register 

announcing the effective date for the 

rules requiring OMB approval. 

FOR FURTHER INFORMATION CONTACT: 

Wireline Competition Bureau, 

Competition Policy Division, Michael 

Ray, at (202) 418–0357, michael.ray@

fcc.gov. For additional information 

concerning the Paperwork Reduction 

Act information collection requirements 

contained in this document, send an 

email to PRA@fcc.gov or contact Nicole 

Ongele at (202) 418–2991. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Third 

Report and Order in WC Docket No. 17– 

84, WT Docket No. 17–79, FCC 18–111, 

adopted August 2, 2018 and released 

August 3, 2018. The full text of this 

document is available for public 

inspection during regular business 

hours in the FCC Reference Information 

Center, Portals II, 445 12th Street SW, 

Room CY–A257, Washington, DC 20554. 

It is available on the Commission’s 

website at https://docs.fcc.gov/public/ 

attachments/FCC-18-111A1.pdf. 

Synopsis 

I. Introduction 

1. In today’s order, we take one large 

step and several smaller steps to 

improve and speed the process of 

preparing poles for new attachments, or 

‘‘make ready.’’ Make-ready generally 

refers to the modification or 

replacement of a utility pole, or of the 

lines or equipment on the utility pole, 

to accommodate additional facilities on 

the pole. Consistent with the 

recommendations of the Broadband 

Deployment Advisory Committee 

(BDAC), we fundamentally shift the 

framework for the vast majority of 

attachments governed by federal law by 

adopting a new pole attachment process 

that includes ‘‘one-touch make-ready’’ 

(OTMR), in which the new attacher 

performs all make-ready work. OTMR 

speeds and reduces the cost of 

broadband deployment by allowing the 

party with the strongest incentive—the 

new attacher—to prepare the pole 

quickly by performing all of the work 

itself, rather than spreading the work 

across multiple parties. By some 

estimates, OTMR alone could result in 

approximately 8.3 million incremental 

premises passed with fiber and about 

$12.6 billion in incremental fiber capital 

expenditures. We exclude from OTMR 

new attachments that are more 

complicated or above the 

‘‘communications space’’ of a pole, 

where safety and reliability risks can be 

greater, but we make significant 

incremental improvements to our rules 

governing such attachments to speed the 

existing process, promote accurate 

billing, and reduce the likelihood of 

coordination failures that cause 

unwarranted delay. 

2. We also adopt other improvements 

to our pole attachment rules. To provide 

certainty to all parties and reduce the 

costs of deciphering our old decisions, 

we codify and refine our existing 

precedent that requires utilities to allow 

‘‘overlashing,’’ which helps maximize 

the usable space on the pole. We clarify 

that new attachers are not responsible 

for the costs of repairing preexisting 

violations of safety or other codes or 

utility construction standards 

discovered during the pole attachment 

process. And we eliminate outdated 

disparities between the pole attachment 

rates incumbent local exchange carriers 

(LECs) must pay compared to other 

similarly-situated telecommunications 

attachers. 

3. Finally, in this Third Report and 

Order, we make clear that we will 

preempt, on a case-by-case basis, state 

and local laws that inhibit the 

rebuilding or restoration of broadband 

infrastructure after a disaster. 

II. Background 

4. Section 224 of the Communications 

Act of 1934, as amended (Act), grants us 

broad authority to regulate attachments 

to utility-owned and -controlled poles, 

ducts, conduits, and rights-of-way. The 

Act authorizes us to prescribe rules to: 

Ensure that the rates, terms, and 

conditions of pole attachments are just 

and reasonable; require utilities to 

provide nondiscriminatory access to 

their poles, ducts, conduits, and rightsof-way to telecommunications carriers 

and cable television systems 

(collectively, attachers); provide 

procedures for resolving pole 

attachment complaints; govern pole 

attachment rates for attachers; and 

allocate make-ready costs among 

attachers and utilities. The Act exempts 

from our jurisdiction those pole 

attachments in states that have elected 

to regulate pole attachments themselves. 

Pole attachments in thirty states are 

currently governed by our rules. 

5. Our rules take into account the 

many purposes of utility poles and how 

an individual pole is divided into 

various ‘‘spaces’’ for specific uses. 

Utility poles often accommodate 

equipment used to provide a variety of 

services, including electric power, 

telephone, cable, wireline broadband, 

and wireless. Accommodating a variety 

of services on the same pole benefits the 

public by minimizing unnecessary and 

costly duplication of plant for all pole 


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users. Different vertical portions of the 

pole serve different functions. The 

bottom of the pole generally is unusable 

for most types of attachments, although 

providers of wireless services and 

facilities sometimes attach equipment 

associated with distributed antenna 

systems and other small wireless 

facilities to the portion of the pole near 

the ground. Above that, the lower usable 

space on a pole—the ‘‘communications 

space’’—houses low-voltage 

communications equipment, including 

fiber, coaxial cable, and copper wiring. 

The topmost portion of the pole, the 

‘‘electric space,’’ houses high-voltage 

electrical equipment. Work in the 

electric space generally is considered 

more dangerous than work in the 

communications space. Historically, 

communications equipment attachers 

used only the communications space; 

however, mobile wireless providers 

increasingly are seeking access to areas 

above the communications space, 

including the electric space, to attach 

pole-top small wireless facilities. 

6. When a new attacher seeks access 

to a pole, it is necessary to evaluate 

whether adding the attachment will be 

safe and whether there is room for it. In 

many cases, existing attachments must 

be moved to make room for the new 

attachment. In some cases, it is 

necessary to install a larger pole to 

accommodate a new attachment. Our 

current rules, adopted in 2011, prescribe 

a multi-stage process for placing new 

attachments on utility poles: 

• Application Review and Survey. 

The new attacher applies to the utility 

for pole access. Once the application is 

complete, the utility has 45 days in 

which to make a decision on the 

application and complete any surveys to 

determine whether and where 

attachment is feasible and what makeready is required. The utility may take 

an additional 15 days for large orders. 

Our current rules allow new attachers in 

the communications space to perform 

surveys when the utility does not meet 

its deadline. 

• Estimate. The utility must provide 

an estimate of all make-ready charges 

within 14 days of receiving the results 

of the survey. 

• Attacher Acceptance. The new 

attacher has 14 days or until withdrawal 

of the estimate by the utility, whichever 

is later, to approve the estimate and 

provide payment. 

• Make-Ready. The existing attachers 

are required to prepare the pole within 

60 days of receiving notice from the 

utility for attachments in the 

communications space (105 days in the 

case of larger orders) or 90 days for 

attachments above the communications 

space (135 days in the case of larger 

orders as defined in 47 CFR 1.1411(g)). 

A utility may take 15 additional days 

after the make-ready period ends to 

complete make-ready itself. Our current 

rules allow new attachers in the 

communications space to perform makeready work themselves using a utilityapproved contractor when the utility or 

existing attachers do not meet their 

deadlines. 

7. A number of commenters allege 

that pole attachment delays and the 

high costs of attaching to poles have 

deterred them from deploying 

broadband. Commenters in particular 

point to the make-ready stage of our 

current timeline as the largest source of 

high costs and delays in the pole 

attachment process. 

8. As part of its commitment to 

speeding broadband deployment, the 

Commission established the BDAC in 

January 2017 to advise on how best to 

remove barriers to broadband 

deployment, such as delays in new pole 

attachments. Earlier this year, the BDAC 

recommended that the Commission take 

a series of actions to promote 

competitive access to broadband 

infrastructure, including adopting 

OTMR for simple attachments in the 

communications space and making 

incremental improvements to the 

Commission’s pole attachment process 

for complex and non-communications 

space attachments. 

9. We are also committed to using all 

the tools at our disposal to speed the 

restoration of infrastructure after 

disasters. Disasters such as the 2017 

hurricanes can have debilitating effects 

on communications networks, and one 

of our top priorities is assisting in the 

rebuilding of network infrastructure in 

the wake of such events. We have also 

made clear our commitment to ensuring 

that our own federal regulations do not 

impede restoration efforts. 

III. Third Report and Order 

10. Based on the record in this 

proceeding, we amend our pole 

attachment rules to facilitate faster, 

more efficient broadband deployment. 

Further, we address state and local legal 

barriers to rebuilding networks after 

disasters. But, at the outset, we 

emphasize that parties are welcome to 

reach bargained solutions that differ 

from our rules. Our rules provide 

processes that apply in the absence of a 

negotiated agreement, but we recognize 

that they cannot account for every 

distinct situation and encourage parties 

to seek superior solutions for 

themselves through voluntary privatelynegotiated solutions. In addition, we 

recognize that some states will seek to 

build on the rules that we adopt herein 

in order to serve the particular needs of 

their communities. As such, nothing 

here should be construed as altering the 

ability of a state to exercise reverse 

preemption of our pole attachment 

rules. 

A. Speeding Access to Poles 

11. Most fundamentally, we amend 

our rules to allow new attachers 

(defined as a cable television system or 

telecommunications carrier requesting 

to attach new or upgraded facilities to 

a pole owned or controlled by a utility) 

with simple wireline attachments in the 

communications space to elect an 

OTMR-based pole attachment process 

that places them in control of the work 

necessary to attach their equipment, and 

we improve our existing attachment 

process for other, more complex 

attachments. 

12. No matter the attachment process, 

we encourage all parties to work 

cooperatively to meet deadlines, 

perform work safely, and address any 

problems expeditiously. Utilities, new 

attachers, and existing attachers agree 

that cooperation among the parties 

works best to make the pole attachment 

process proceed smoothly and safely. 

1. New OTMR-Based Pole Attachment 

Process 

13. We adopt a new pole attachment 

process that new attachers can elect that 

places them in control of the surveys, 

notices, and make-ready work necessary 

to attach their equipment to utility 

poles. With OTMR as the centerpiece of 

this new pole attachment regime, new 

attachers will save considerable time in 

gaining access to poles (with accelerated 

deadlines for application review, 

surveys, and make-ready work) and will 

save substantial costs with one party 

(rather than multiple parties) doing the 

work to prepare poles for new 

attachments. A better aligning of 

incentives for quicker and less 

expensive attachments will serve the 

public interest through greater 

broadband deployment and competitive 

entry. 

a. Applicability and Merits of OTMR 

Regime 

14. We adopt the BDAC’s 

recommendation and amend our rules 

to allow new attachers to elect OTMR 

for simple make-ready for wireline 

attachments in the communications 

space on a pole. We define simple 

make-ready as the BDAC does, i.e., 

make-ready where existing attachments 

in the communications space of a pole 

could be transferred without any 

reasonable expectation of a service 


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outage or facility damage and does not 

require splicing of any existing 

communication attachment or 

relocation of an existing wireless 

attachment. Commenters state that 

simple make-ready work does not raise 

the same level of safety concerns as 

complex make-ready or work above the 

communications space on a pole. There 

is substantial support in the record, both 

from utilities and attachers, for allowing 

OTMR for simple make-ready; and 

because this option will apply to the 

substantial majority of pole attachment 

projects, it will speed broadband 

deployment. We also follow the BDAC’s 

recommendation and do not provide an 

OTMR option for more complex projects 

in the communications space or for any 

projects above the communications 

space at this time. 

15. Our new rules define ‘‘complex’’ 

make-ready, as the BDAC does, as 

transfers and work within the 

communications space that would be 

reasonably likely to cause a service 

outage or facility damage, including 

work such as splicing of any 

communication attachment or 

relocation of existing wireless 

attachments. We consider any and all 

wireless activities, including those 

involving mobile, fixed, and point-topoint wireless communications and 

wireless internet service providers to be 

complex. We agree with Verizon that 

the term ‘‘wireless activities’’ does not 

include a wireless attacher’s work on its 

wireline backhaul facilities, which is 

not different than wireline work done 

by other attachers. While the BDAC 

recommendation did not explicitly 

address the treatment of pole 

replacements, we interpret the 

definition of complex make-ready to 

include all pole replacements as well. 

We agree with commenters that pole 

replacements are usually not simple or 

routine and are more likely to cause 

service outages or facilities damage, and 

thus we conclude that they should fall 

into the complex category of work. 

16. There is substantial support from 

commenters in the record for not using 

OTMR for complex make-ready work at 

this time. We agree that we should 

exclude these more challenging 

attachments from OTMR at this time to 

minimize the likelihood and impact of 

service disruption. In particular, cutting 

or splicing of existing wires on a pole 

has the heightened potential to result in 

a network outage. We also recognize 

that wireless attachments involve 

unique physical and safety 

complications that existing attachers 

must consider (e.g., wireless 

configurations cover multiple areas on a 

pole, considerably more equipment is 

involved, RF impacts must be analyzed), 

thus increasing the challenges of using 

an accelerated, single-party process at 

this time. 

17. The new OTMR process also will 

not be available for work above the 

communications space, including the 

electric space. Many utility commenters 

argue that work above the 

communications space, which mainly 

involves wireless attachments, 

frequently impacts electrical facilities 

and that such work should fall to the 

utilities to manage and complete. We 

recognize that work above the 

communications space may be more 

dangerous for workers and the public 

and that impacts of electric outages are 

especially severe. Therefore, we find at 

this time that the value of control by 

existing attachers and utilities over 

infrastructure above the 

communications space outweighs the 

benefits of allowing OTMR for these 

attachments. We recognize that by not 

providing an OTMR option above the 

communications space for the time 

being, we are not permitting OTMR as 

an option for small cell pole-top 

attachments necessary for 5G 

deployment. We take this approach 

because there is broad agreement that 

more complex projects and all projects 

above the communications space may 

raise substantial safety and continuity of 

service concerns. At the same time, we 

adopt rules aimed at mitigating the 

safety and reliability concerns about the 

OTMR process we adopt today, and we 

are optimistic that once parties have 

more experience with OTMR, either 

they will by contract or we will by rule 

expand the reach of OTMR. In the 

meantime, we find that the benefits of 

moving incrementally by providing a 

right to elect OTMR only in the 

communications space and only for 

simple wireline projects outweigh the 

costs. 

18. We agree with commenters that 

argue that OTMR is substantially more 

efficient for new attachers, current 

attachers, utilities, and the public than 

the current sequential make-ready 

approach set forth in our rules. Indeed, 

Corning estimates that OTMR for 

wireline deployments could result in 

over eight million additional premises 

passed with fiber and about $12.6 

billion in incremental fiber capital 

expenditures. Although we do not at 

this time provide for an OTMR option 

for pole-top small cell deployment, 

OTMR will facilitate the rollout of 5G 

services because mobile services depend 

on wireline backhaul, and OTMR will 

expedite the buildout of wireline 

backhaul capacity. 

19. OTMR speeds broadband 

deployment by better aligning 

incentives than the current multi-party 

process. It puts the parties most 

interested in efficient broadband 

deployment—new attachers—in a 

position to control the survey and makeready processes. The misaligned 

incentives in the current process often 

result in delay by current incumbents 

and utilities and high costs for new 

attachers as a result of the coordination 

of sequential make-ready work 

performed by different parties. As 

Google Fiber points out, under the 

current process, if the lowest attacher on 

the pole (usually the incumbent LEC) 

moves its wires and equipment to 

accommodate a new attachment at the 

end of the existing 60-day make-ready 

period, then the entire pole attachment 

process is derailed because multiple 

existing attachers still have to perform 

make-ready on their equipment, despite 

the fact that the make-ready deadline 

contemplated in our rules has lapsed. 

Because existing attachers lack an 

incentive to accommodate new attachers 

quickly, these delays in sequential 

attachment are all too common. OTMR 

eliminates this problem. 

20. We also agree with commenters 

that OTMR will benefit municipalities 

and their residents by reducing closures 

and disruptions of streets and 

sidewalks. Unlike sequential makeready work, which results in a series of 

trips to the affected poles by each of the 

attachers and repeated disruptions to 

vehicular traffic, OTMR’s single trip to 

each affected pole will reduce the 

number of such disruptions. 

21. We also agree with those 

commenters that argue that an OTMRbased regime will benefit utilities. The 

record indicates that many utilities that 

own poles are not comfortable with 

their current responsibilities for 

facilitating attachments in the 

communications space. By shifting 

responsibilities from the utility to the 

new attacher to survey the affected 

poles, determine the make-ready work 

to be done, notify affected parties of the 

required make-ready work, and perform 

the make-ready work, our new OTMR 

regime will alleviate utilities of the 

burden of overseeing the process for 

most new attachments and of some of 

the costs of pole ownership. 

22. While giving the new attacher 

control drives the substantial benefits of 

an OTMR regime, it also raises concerns 

among some utilities and existing 

attachers. But we are not convinced by 

the arguments made by some 

commenters that OTMR will allow 

make-ready work to be performed by 

new attachers that lack adequate 


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Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations 46815 

incentives to perform quality work, and 

therefore will increase the likelihood of 

harm to equipment integrity and public 

safety. As other commenters explain, 

the new attacher and its chosen 

contractor have an incentive to perform 

quality work in order to limit risk, keep 

workers safe, and avoid tort liability for 

damages caused by substandard work. 

We also adopt several safeguards herein 

that incentivize the new attacher and its 

contractor to perform work correctly. 

23. In addition, some commenters 

raise concerns that OTMR may not 

protect public safety given the real 

prospects for serious injuries to 

lineworkers and the public; ensure the 

reliability and security of the electric 

grid; and maintain the safety and 

reliability of existing attachers’ facilities 

in order to prevent service outages. We 

are committed to ensuring that our 

approach to pole attachments preserves 

the safety of workers and the public and 

protects the integrity of existing electric 

and communications infrastructure. As 

an initial matter, we follow the BDAC’s 

recommendation that all complex work 

and work above the communications 

space, where reliability and safety risks 

can be greater, will not be eligible for 

the new OTMR process. In addition, we 

take several steps to promote 

coordination among the parties and 

ensure that new attachers perform work 

safely and reliably, thereby significantly 

mitigating the potential drawbacks of 

OTMR. First, we require new attachers 

to use a utility-approved contractor to 

perform OTMR work, except when the 

utility does not provide a list of 

approved contractors, in which case 

new attachers must use qualified 

contractors. This requirement addresses 

existing attachers’ apprehension about 

unfamiliar contractors working on their 

facilities and also guards against delays 

that result when utilities fail to maintain 

approved contractor lists. Second, we 

require new attachers to provide 

advance notice and allow 

representatives of existing attachers and 

the utility a reasonable opportunity to 

be present when surveys and OTMR 

work are performed in order to 

encourage new attachers to perform 

quality work and to provide the utility 

and existing attachers an opportunity 

for oversight to protect safety and 

prevent equipment damage. Third, we 

require new attachers to allow existing 

attachers and the utility the ability to 

inspect and request any corrective 

measures soon after the new attacher 

performs the OTMR work to address 

existing attachers’ and utilities’ 

concerns that the new attacher’s 

contractor may damage equipment or 

cause an outage without their 

knowledge and with no opportunity for 

prompt recourse. However, we decline 

to adopt NCTA and CWA’s request that 

we find that new attachers should be 

responsible for any expenses associated 

with the costs incurred by existing 

attachers if they decide to double-check 

the work performed by the new 

attacher’s contractors, including any 

post-make-ready inspections. 

24. Finally, as an additional safeguard 

to prevent substantial service 

interruptions or danger to the public or 

workers, we allow existing attachers and 

utilities to file a petition with the 

Commission, to be considered on an 

expedited, adjudicatory case-by-case 

basis, requesting the suspension of a 

new attacher’s OTMR privileges due to 

a pattern or practice of substandard, 

careless, or bad faith conduct when 

performing attachment work. Such 

petition shall be placed on public 

notice, and the new attacher will have 

an opportunity to address the 

allegations of substandard, careless, or 

bad faith conduct and to explain how it 

plans to eliminate any such conduct in 

the future. In those instances where the 

Commission finds that suspension is 

warranted, the Commission will 

suspend the privileges for a length of 

time appropriate based on the conduct 

at issue, up to and including permanent 

suspension. 

25. We disagree with NCTA’s 

contention that these safeguards do not 

adequately protect existing attachers 

from substandard work performed on 

their equipment by third-party 

contractors. At every step in the OTMR 

process, the safeguards we adopt give 

existing attachers an opportunity to 

monitor third-party work and raise any 

concerns they might have—either to the 

new attacher or to the utility. Far from 

being voiceless in their concerns about 

third-party work, as NCTA contends, 

existing attachers can take their 

reservations about new attacher 

workmanship and contractor 

qualifications to the utility, which, as 

the pole owner and an attacher on the 

pole, has the incentive to act on such 

concerns. 

26. We recognize that we cannot fully 

align the incentives of new attachers 

with those of existing attachers and 

utilities, but we find that the significant 

benefits of faster, cheaper, more efficient 

broadband deployment from this new 

OTMR process outweigh any costs that 

remain for most pole attachments. We 

expect the OTMR regime we adopt 

today to speed broadband deployment 

without substantial service 

interruptions or danger to the public or 

workers. To the extent that it exceeds 

our expectations, we may consider 

expanding the availability of our OTMR 

process where it is safe to do so. 

Conversely, if new attachers fail to 

prevent physical harm or outages, we 

will not hesitate to revisit whether to 

maintain an OTMR option. 

27. We note that even where an 

attachment qualifies for our new OTMR 

process, there may be instances where a 

new attacher prefers to use our existing 

pole attachment timeline because, for 

instance, the new attacher prefers a 

process where existing attachers are 

responsible for moving their own 

equipment rather than the new attacher. 

Therefore, we permit new attachers to 

elect our existing pole attachment 

regime (as modified herein) rather than 

the new OTMR process. 

28. Legal Considerations. We reject 

the contentions of certain cable 

commenters that OTMR deprives an 

existing attacher of its statutory right to 

notice and an opportunity to add to or 

modify its own existing attachment 

before a pole is modified or altered and 

thus violates Section 224(h) of the Act. 

Section 224(h) provides, in relevant 

part, that ‘‘[w]henever the owner of a 

pole . . . intends to modify or alter such 

pole . . . the owner shall provide 

written notification of such action to 

any entity that has obtained an 

attachment . . . so that such entity may 

have a reasonable opportunity to add to 

or modify its existing attachment.’’ We 

agree with Verizon that there is no 

statutory right under Section 224(h) for 

an existing attacher to add to or modify 

its existing attachment when a new 

attacher is performing the make-ready. 

On its face Section 224(h) only applies 

to situations where the pole owner 

modifies or alters the pole, and thus is 

not implicated under the OTMR 

approach we adopt today: Under our 

approach new attachers, not pole 

owners, perform OTMR work. 

29. We also find that OTMR does not 

constitute a government taking of 

existing attachers’ property that requires 

just compensation under the Fifth 

Amendment to the U.S. Constitution, 

and we reject arguments to the contrary. 

As an initial matter, OTMR is not a 

‘‘permanent physical occupation’’ of an 

existing attacher’s property; at most it 

gives contractors of the new attacher a 

temporary right to move and rearrange 

attachments. In such situations, where a 

regulation falls short of eliminating all 

economically beneficial use of the 

property at issue, courts apply the 

balancing test of Penn Central 

Transportation Co. and evaluate the 

economic impact of the regulation on 

the property owner, the extent to which 

the regulation has interfered with 


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46816 Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations 

‘‘distinct investment-backed 

expectations’’ and ‘‘the character of the 

government action.’’ Applying that test 

here makes clear that OTMR effects no 

taking. We are limiting the application 

of OTMR to simple work (i.e., where 

outages are not expected to occur) on 

wireline attachments in the 

communications space performed by 

qualified contractors, and we have taken 

steps to ensure that the OTMR process 

limits adverse effects on existing 

attachers’ networks, which means any 

economic impact on existing attachers 

and any interference with investment 

expectations will be limited. 

Furthermore, OTMR represents at most 

an incidental movement of existing 

attachers’ property. To the extent that 

movement affects existing attachers’ or 

utilities’ property, such impact is 

incidental and not our purpose, which 

is to promote broadband deployment 

and further the public interest. 

b. Contractor Selection Under the 

OTMR Process 

30. We adopt rules requiring attachers 

using the OTMR process to use a utilityapproved contractor if the utility makes 

available a list of qualified contractors 

authorized to perform surveys and 

simple make-ready work in the 

communications space. If there is no 

utility-approved list of contractors, then 

we adopt rules that require OTMR 

attachers to use a contractor that meets 

key safety and reliability criteria, as 

recommended by the BDAC. The record 

suggests that inconsistent updating of 

approved contractor lists by utilities, as 

well as a lack of uniform contractor 

qualification and selection standards, 

leads to delays when new attachers seek 

to exercise their self-help remedy and 

perform make-ready work on a pole. At 

the same time, existing attachers are 

understandably apprehensive about 

having unfamiliar contractors work on 

and potentially damage their facilities. 

The process we adopt addresses both of 

these problems by preventing delays in 

the engagement of contractors and by 

establishing clear minimum 

qualifications. 

31. Utility-Approved Contractors. We 

strongly encourage utilities to publicly 

maintain a list of approved contractors 

qualified to perform surveys and simple 

make-ready work as part of the OTMR 

process. However, we do not require 

utilities to do so. Utilities have a strong 

interest in protecting their equipment 

and many have indicated their interest 

in deciding which contractors can 

perform work on their poles. At the 

same time, many utilities have indicated 

that they do not have the expertise to 

select contractors qualified to work in 

the communications space and would 

prefer to defer to the new attachers’ 

choice of contractors. Therefore, we give 

the utilities the option of maintaining a 

list of approved contractors for OTMR 

work but do not impose a mandate. 

32. If the utility maintains a list, new 

and existing attachers may request that 

contractors meeting the qualifications 

set forth below be added to the utility’s 

list and utilities may not unreasonably 

withhold consent to add a new 

contractor to the list. We adopt this 

requirement so that a utility that 

maintains a list does not have the ability 

to prevent deployment progress, which 

would be contrary to our goal in 

adopting OTMR. To be reasonable, a 

utility’s decision to withhold consent 

must be prompt, set forth in writing that 

describes the basis for rejection, 

nondiscriminatory, and based on fair 

application of commercially reasonable 

requirements for contractors relating to 

issues of safety or reliability. 

33. To help ensure public and worker 

safety and the integrity of all parties’ 

equipment, we conclude that any 

contractors that perform OTMR must 

meet certain minimum safety and 

reliability standards. We require utilities 

to ensure that contractors on the 

approved list meet the following 

minimum requirements, enumerated by 

the BDAC, for performing OTMR work: 

(1) Follow published safety and 

operational guidelines of the utility, if 

available, but if unavailable, follow the 

National Electrical Safety Code (NESC) 

guidelines; (2) read and follow licensedengineered pole designs for make-ready 

work, if required by the utility; (3) 

follow all local, state, and federal laws 

and regulations including, but not 

limited to, the rules regarding Qualified 

and Competent Persons under the 

requirements of the Occupational Safety 

and Health Administration (OSHA) 

rules; (4) meet or exceed any uniformly 

applied and reasonable safety and 

reliability thresholds set and made 

available by the utility, e.g., the 

contractor cannot have a record of 

significant safety violations or worksite 

accidents; and (5) be adequately insured 

or be able to establish an adequate 

performance bond for the make-ready 

work it will perform, including work it 

will perform on facilities owned by 

existing attachers. We adopt NCTA’s 

proposed clarification that the makeready for which the contractor must be 

adequately insured or establish an 

adequate performance bond includes 

any work it will perform on facilities 

owned by existing attachers. These 

requirements collectively will 

materially reduce safety and reliability 

risks, as well as delays in the 

completion of pole attachments, by 

allowing one qualified contractor to 

perform all necessary make-ready work 

instead of having multiple contractors 

make multiple trips to the pole to 

perform this work. 

34. New Attacher Selection of 

Contractors. Where there is no utilityapproved list of qualified contractors or 

no approved contractors available 

within a reasonable time period, then, 

consistent with the BDAC 

recommendation, new attachers 

proceeding with OTMR may use 

qualified contractors of their choosing. 

To maximize options for new attachers, 

we allow a new attacher entitled to 

select a contractor that does not appear 

on a utility’s list to use its own 

employees to perform pole attachment 

work, so long as those employees meet 

all qualifications for contractors set 

forth herein. Thus, we use the term 

‘‘contractor’’ as a term of art that 

encompasses the new attacher’s 

employees. The new attacher must 

certify to the utility (either in the threebusiness-day advance notice for surveys 

or in the 15-day make-ready notice) that 

the named contractor meets the same 

five minimum requirements for safety 

and reliability discussed above. 

35. The utility may mandate 

additional commercially reasonable 

requirements for contractors relating to 

issues of safety and reliability, but such 

requirements must clearly communicate 

the safety or reliability issue, be nondiscriminatory, in writing, and publicly 

available (e.g., on the utility’s website). 

Ideally, such requirements for 

contractors would also be found in the 

pole attachment agreement between the 

utility and the new attacher. This 

condition will guard against pole 

damage and resulting outages and safety 

hazards due to particular local 

conditions, while ensuring that utilities 

do not use these additional 

requirements as a roadblock to 

deployment. We also grant utilities the 

flexibility to mandate such additional 

commercially reasonable requirements 

for contractors because utilities are best 

positioned to ensure that any additional 

state or local legal requirements are 

complied with and any additional 

environmental or pole-specific factors 

are accounted for. 

36. Where there is no utility-approved 

list of contractors, we adopt rules, 

consistent with the BDAC’s 

recommendation, allowing the utility to 

veto any contractor chosen by the new 

attacher. Utilities must base any veto on 

reasonable safety or reliability concerns 

related to the contractor’s ability to meet 

one or more of the minimum 

qualifications described earlier in this 


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subsection or on the utility’s previously 

posted safety standards. We agree with 

ACA that we should prevent 

unwarranted vetoes by requiring the 

utility to have a ‘‘reasonable’’ basis for 

vetoing the new attacher’s contractor. 

The utility also must make its veto 

within either the three-business-day 

notice period for surveys or the 15-day 

notice period for make-ready. In 

reaching this determination, we agree 

with the Coalition of Concerned 

Utilities that the safety and reliability of 

the pole is extremely important and, as 

a result, utilities should be able to 

disqualify contractors that raise concrete 

workmanship dangers. To avoid an 

ongoing dispute between the utility and 

the new attacher that results in the 

substantial delay of the pole attachment, 

any veto by the utility that conforms 

with the requirements we set forth is 

determinative and final. When vetoing 

an attacher’s chosen contractor, 

however, the utility must identify at 

least one qualified contractor available 

to do the work. 

37. Existing Attachers. We decline to 

grant existing attachers the right to veto 

or object to the inclusion of a contractor 

on the utility-approved list or a new 

attacher’s contractor selection. We also 

decline suggestions that we grant 

existing attachers the right to disqualify 

a contractor if the contractor does not 

meet the minimum qualifications for 

contractors we establish or if the 

existing attacher previously terminated 

the contractor for poor performance or 

violations of federal, state, or local law. 

The rules we adopt should alleviate 

some commenters’ concern that 

depriving existing attachers of a right to 

input in the contractor selection process 

could result in serious harm to existing 

facilities on the pole. First, only simple 

make-ready work is subject to the 

OTMR process; existing attachers can 

perform their own make-ready work in 

more challenging and dangerous 

situations. Further, the authority we 

grant utilities to develop a mandatory 

list and veto a new attacher’s contractor 

selection for OTMR work should help 

mitigate the risk to the safety and 

reliability of the attachments subject to 

make-ready work by the new attacher’s 

contractor. As several commenters point 

out, in many markets, contractors 

approved by the utilities may already be 

the same as those approved by existing 

attachers. Additionally, regardless of 

whether the utility intervenes, 

contractors must meet the five criteria 

recommended by the BDAC, which help 

to ensure safe, reliable, and quality 

work. Finally, we conclude that we have 

put in place adequate protections 

elsewhere in the new OTMR process, in 

addition to the protections we identify 

here, to protect the network reliability 

and safety concerns of existing 

attachers. 

c. OTMR Pole Attachment Timeline 

38. One substantial benefit of the 

OTMR process is that it allows for a 

substantially shortened timeline for 

application review and make-ready 

work. We estimate that new attachers 

using the new OTMR process will save 

more than three months from 

application to completion as compared 

to the process provided for under our 

existing rules. 

(i) Conducting a Survey 

39. Our OTMR regime saves 

significant time by placing the 

responsibility on the new attacher 

(rather than the utility) to conduct a 

survey of the affected poles to determine 

the make-ready work to be performed. 

Under an OTMR regime, the survey will 

come near the beginning of the process 

(after the new attacher negotiates with 

the utility for pole access and chooses 

a contractor to perform the work 

required for attachment) to enable the 

new attacher to determine whether any 

make-ready is required and, if so, what 

type of make-ready (simple or complex) 

is involved. The results of the survey 

typically will be included in the new 

attacher’s pole attachment application. 

40. To help ensure that the new 

attacher handles third-party equipment 

with sufficient care and makes an 

accurate determination of the work to be 

done to prepare the poles for its new 

attachments, our new rules require new 

attachers to permit representatives of 

the utility and any existing attachers 

potentially affected by the proposed 

work to be present for the survey. We 

also require new attachers to use 

commercially reasonable efforts to 

provide the utility and existing attachers 

at least three business days of advance 

notice of the date, time, and location of 

the survey and the name of the 

contractor performing the survey. 

Despite claims to the contrary, we agree 

with the BDAC that advance notice of 

three business days from the new 

attacher strikes the right balance 

between providing sufficient time to 

accommodate coordination with the 

utility and existing attachers and the 

need to keep the pole attachment 

process moving forward in a timely 

manner. Also, as the BDAC found in the 

context of utility surveys, joint surveys 

help address the potential safety and 

equipment damage risks raised by 

existing attachers. Existing attachers can 

raise any objections about the survey 

findings either with the new attacher or 

with the utility, which can make final 

determinations on survey results for 

reasons of capacity, safety, reliability, 

and generally applicable engineering 

purposes. To prevent coordination 

problems that may invite delay, we do 

not require a new attacher to set a date 

for the survey that is convenient for the 

utility and existing attachers. In the case 

of reasonable scheduling conflicts, 

however, we encourage the parties to 

work together to find a mutuallyagreeable time for the survey. We also 

encourage all attachers to provide a 

point of contact publicly (e.g., on their 

websites) so that new attachers know 

whom to contact when providing 

notices required under the OTMR 

regime. 

41. We recognize that new attachers 

may need to rely upon utilities for 

existing attacher contact information to 

make the notifications, and utilities 

presumably have access to such 

information through pole attachment 

agreements and/or previous make-ready 

notifications. Therefore, if a new 

attacher requests contact information for 

existing attachers from the utility for use 

in this notification process, the utility 

must provide any such contact 

information it possesses. We adopt this 

requirement so that a new attacher can 

fulfill its notification obligation when it 

does not have a direct relationship with 

existing attachers. We find a utility’s 

failure to keep adequate documentation 

on existing attachments is insufficient 

justification for eliminating the advance 

notice requirement for surveys. 

(ii) Notifying the Utility of the Intent To 

Use OTMR 

42. Consistent with the BDAC’s 

recommendation, we require the new 

attacher to ensure that its contractor 

determines whether make-ready work 

identified in the survey is simple or 

complex, subject to a utility’s right to 

reasonably object to the determination. 

Because all utilities have strong 

incentives to promote safety and the 

structural integrity of their poles, we 

agree with AT&T and Windstream that 

all utilities, including incumbent LEC 

pole owners, should have the ability to 

object to the simple/complex 

determination on poles that the utility 

owns. For purposes of clarity and 

certainty, we require a new attacher—if 

it wants to use the OTMR process and 

is eligible to do so based on the 

survey—to elect OTMR in its pole 

attachment application and to identify 

in its application the simple make-ready 

work to be performed. Some 

commenters oppose letting the new 

attacher’s contractor make the simple 


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versus complex determination. 

However, we agree with those 

commenters that argue that the new 

attacher’s contractor has the incentive to 

make the correct determination in order 

to (1) avoid liability for damages caused 

by an incorrect choice; (2) limit risk; 

and (3) in the case of third-party 

contractors, preserve relationships with 

all attachers, as well as with the utility, 

to obtain future work. As a result, we 

find it is more likely that approved 

contractors will be conservative in their 

determination of whether work is 

simple or complex. In addition, we 

agree with Google Fiber that having a 

contractor chosen from a neutral utilityapproved list, where such a list is 

available, determine whether makeready is simple or complex means 

neither the incumbent nor the new 

attacher has an opportunity to inject 

anti-competitive bias into the process.’’ 

43. We require a utility that wishes to 

object to a simple make-ready 

determination to raise such an objection 

during the 15-day application review 

period (or within 30 days in the case of 

larger orders). We decline suggestions 

that we extend the objection right to 

existing attachers because we agree that 

doing so could provide existing 

attachers the opportunity to slow a new 

attacher’s deployment by overdesignating make-ready work as 

complex. The existing attacher always 

may voice its concerns to the new 

attacher and to the utility, which can 

veto the determination of a new 

attacher’s contractor and which has an 

incentive as the pole owner and as an 

attacher to ensure that work is classified 

correctly. 

44. Also, while the BDAC did not 

address the timing of an objection to the 

simple/complex determination in its 

OTMR recommendation, we find that 

setting a time limit for the objection will 

reduce confusion and foster quicker 

deployment. We find 15 days to be 

sufficient because the utility will have 

the right to accompany the new 

attacher’s contractor on the survey when 

the contractor makes the simple/ 

complex determination, so the utility 

will have ample opportunity to have the 

information it needs to determine 

whether to object before the deadline. 

45. If the utility objects to the new 

contractor’s determination that work is 

simple, then the work is deemed 

complex—the utility’s objection is final 

and determinative so long as it is 

specific and in writing, includes all 

relevant evidence and information 

supporting its decision, and provides a 

good faith explanation of how such 

evidence and information relate to a 

determination that the make-ready is 

not simple. This approach is consistent 

with other decisions left to a utility 

during our pole attachment process. We 

find that making the utility’s 

determination final is appropriate 

because it avoids protracted disputes 

that could slow deployment. However, 

we caution utilities that if they make 

such a decision in a manner 

inconsistent with the requirements we 

set forth, for instance without adequate 

support or in bad faith, then new 

attachers can avail themselves of our 

complaint process to address such 

behavior. 

46. If the new attacher determines that 

the make-ready involves a mix of simple 

and complex work (or involves work 

above the communications space), then 

we allow the new attacher discretion to 

determine whether to bifurcate the 

work. If the new attacher prefers to 

complete the simple make-ready work 

under the OTMR process while it waits 

for complex work/work above the 

communications space to run its course 

through the longer existing process, 

then it may do so. A new attacher 

electing to bifurcate the work must 

submit separate applications for the 

simple and complex work and work 

above the communications space. If the 

new attacher prefers that its entire 

project (both simple and complex work 

and work above the communications 

space) follow the existing process, or if 

the new attacher does not view 

bifurcation as feasible, then it may 

employ the existing process for the 

entire project. 

47. In response to a request from Xcel/ 

Alliant, we clarify ‘‘what procedures 

should be followed when it is 

discovered in the field while makeready is being performed that the work 

on a particular pole is in fact complex, 

or if it is found that conditions in the 

field will prevent the OTMR contractor 

from performing the make-ready work 

in a ‘simple’ manner, if at all.’’ In such 

situations, we find that if the new 

attacher or the utility discovers that 

work initially classified by the new 

attacher and approved by the utility as 

simple actually turns out to be complex, 

then that specific work must be stopped 

(although the new attacher may choose 

to continue OTMR work on other poles 

to the extent that such work is simple). 

The determining party must notify the 

other party of its determination and the 

affected poles; the attachments at issue 

will then be governed by the non-OTMR 

timeline, and the utility should provide 

notice to existing attachers of makeready work as soon as reasonably 

practicable. 

(iii) Review of Application for 

Completeness 

48. In the interest of speeding 

application review, we adopt a rule to 

specify that under the OTMR regime, a 

pole attachment application is complete 

if it provides the utility with the 

information necessary under the 

utility’s procedures, as specified in a 

master service agreement or in publiclyavailable requirements at the time of 

submission of the application, to make 

an informed decision on the 

application. We also establish a timeline 

for the utility’s review of the application 

for completeness. We adopt these 

requirements to address attachers’ 

complaints—made in response to the 

Commission’s request in the Wireline 

Infrastructure Notice for comments on 

ways to streamline and accelerate the 

pole attachment timeline—that ‘‘pole 

owners are not transparent about telling 

applicants all information that is 

required to be included on applications 

at the time of their submission,’’ often 

resulting in delays to the pole 

attachment process while the pole 

owner requests additional information 

over a series of weeks or months. 

49. While the current definition of a 

complete application only requires 

‘‘information necessary under [the 

utility’s] procedures,’’ our revised 

definition provides more transparency 

about what an attacher must include in 

its application, because the master 

service agreement or publicly-available 

requirements must be available to new 

attachers as they prepare their 

application. 

50. To prevent unnecessary delays in 

starting the pole attachment process, we 

adopt rules consistent with the BDACrecommended timeline for a utility to 

determine whether a pole attachment 

application is complete: 

• A utility has 10 business days after 

receipt of a pole attachment application 

in which to determine whether the 

application is complete and notify the 

attacher of that decision. 

• If the utility notifies the attacher 

that the attacher’s application is not 

complete within the 10 business-day 

review period, then the utility must 

specify where and how the application 

is deficient. 

• If there is no response by the utility 

within 10 business days, or if the utility 

rejects the application as incomplete but 

fails to specify any deficiencies in the 

application, then the application is 

deemed complete. 

• If the utility timely notifies the new 

attacher that the application is 

incomplete and specifies deficiencies, a 

resubmitted application need only 


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supplement the previous application by 

addressing the issues identified by the 

utility, and the application shall be 

deemed complete within five business 

days after its resubmission, unless the 

utility specifies which deficiencies were 

not addressed and how the resubmitted 

application did not sufficiently address 

the utility’s reasons. 

• The new attacher may follow this 

resubmission procedure as many times 

as it chooses, so long as in each case it 

makes a bona fide attempt to correct the 

issues identified by the utility, and in 

each case the deadlines set forth herein 

apply to the utility’s review. 

51. We find that incorporating a 

specific timeline into our rules provides 

all parties with some predictability 

about the start of the OTMR process and 

avoids unnecessary delays that arise 

when utilities do not formally accept an 

application in a timely manner. We find 

that the timeline we adopt balances the 

interests of new attachers in the speedy 

processing of applications and of 

utilities in needing sufficient time to 

review the applications. We require 

utilities to specify the deficiencies in 

pole attachment applications within 10 

business days of receipt so that the new 

attachers have the information 

necessary to address those deficiencies 

in a timely fashion. We also believe this 

gives incentives for utilities generally to 

communicate to prospective applicants 

concerning what is needed for an 

application because doing so will aid in 

the utility’s formal review process. We 

adopt a ‘‘deemed grant’’ remedy to 

prevent delays, and we adopt a shorter 

timeline for second and further reviews 

because we expect utilities’ review to be 

cabined to a more limited number of 

issues that it previously identified. We 

also encourage utilities that receive 

complete applications to respond 

promptly and affirmatively confirm that 

applications are complete, rather than 

wait for the 10 business-day review 

period to lapse. In response to a concern 

raised by Crown Castle, we clarify that 

the utility cannot delay its 

determination of whether an application 

is complete by seeking to negotiate 

rates, terms, and conditions in the pole 

attachment agreement that unreasonably 

deviate from those assured by the rules. 

Such bad faith practices intended to 

delay the start of the pole attachment 

timeline are prohibited as contrary to 

our goal of speedy broadband 

deployment. 

(iv) Application Review 

52. For OTMR attachments, we 

shorten the time period within which a 

utility must decide whether to grant a 

complete application from 45 days to 15 

days for standard requests and from 60 

days to 30 days for larger requests as 

defined under 47 CFR 1.1411(g). While 

the BDAC did not address this issue, we 

find that because the new attacher 

(rather than the utility) will be doing 

most of the pre-make-ready work under 

OTMR (e.g., surveys, notices), it is 

appropriate to adopt a shorter timeline 

for the utility to review the application. 

Furthermore, because the utility has the 

right to specify the information it 

requires the new attacher to put in the 

application and has the ability to reject 

the application (multiple times if 

necessary) before accepting it for 

review, we find 15 days should be 

sufficient for the utility to conduct its 

review. If the utility needs additional 

time, then it may work with the new 

attacher to negotiate a new schedule 

that timely resolves these issues. We 

retain in the OTMR context our 

preexisting requirement that if a utility 

denies an application, the utility’s 

denial must be specific and include all 

relevant evidence and information 

supporting its denial and must explain 

how such evidence and information 

relate to a denial of access for reasons 

of safety, reliability, lack of capacity, or 

engineering standards. 

(v) Make-Ready 

53. The new attacher may proceed 

with OTMR by giving 15 days’ prior 

written notice to the utility and all 

affected existing attachers. To avoid 

unnecessary delays, we conclude that 

the new attacher may provide the 

required 15-day notice any time after 

the utility deems its pole attachment 

application complete. Thus, the 15-day 

notice period may run concurrently 

with the utility’s evaluation of whether 

to grant the application. If, however, the 

new attacher cannot start make-ready 

work on the date specified in its 15-day 

notice (e.g., because its application has 

been denied or it is otherwise not ready 

to commence make-ready), then the new 

attacher must provide 15 days’ advance 

notice of its revised make-ready date. 

54. Although the BDAC 

recommendation provides for 25 days 

prior written notice for OTMR, we find 

that 15 days strikes a reasonable balance 

between promoting fast access to utility 

poles (one of the core goals of OTMR) 

and providing sufficient time for 

existing attachers and the utility to work 

with the new attacher to arrange to be 

present when OTMR is being performed 

on their equipment. Furthermore, the 

25-day notice period recommended by 

the BDAC for OTMR is only five days 

shorter than the 30-day period 

recommended by the BDAC for existing 

attachers to complete complex makeready work, which is not much time 

savings for an OTMR process that we 

adopt for simple work that is unlikely 

to cause safety issues. We also disagree 

with NCTA’s request for a longer notice 

period for larger projects; because this is 

merely a notice requirement and does 

not require action on the part of the 

existing attacher or utility, there is no 

need for a longer notice period for larger 

projects. 

55. To keep all affected parties 

informed about the new attacher’s 

progress, and consistent with the 

BDAC’s recommendation, we require 

the new attacher to provide 

representatives of the utility and 

existing attachers with the following 

information in the 15-day advance 

notice: (1) The date and time of the 

make-ready work; (2) a description of 

the make-ready work involved; (3) a 

reasonable opportunity to be present 

when the make-ready work is being 

performed; and (4) the name of the 

contractor chosen by the new attacher to 

perform the make-ready work. As is the 

case for survey notifications, if a new 

attacher requests contact information for 

existing attachers from the utility for use 

in this notification process, the utility 

must provide any such contact 

information it possesses. Allowing 

existing attachers and the utility a 

reasonable opportunity to be present 

when OTMR work is being done 

addresses the concerns of existing 

attachers that third-party contractors 

may not take proper care when 

performing simple make-ready work on 

their equipment. We also adopt the 

advance notice requirements to allow 

the utility and existing attachers, if they 

so choose, to alert their customers that 

work on their equipment is forthcoming. 

In addition, providing the name of the 

new attacher’s OTMR contractor allows 

existing attachers to notify the utility 

and the utility to object if the contractor 

is not properly qualified. 

56. We emphasize that the 15 days is 

only a notice period before the new 

attacher begins make-ready work; it is 

not an opportunity for existing attachers 

or the utility to complete make-ready 

work on their equipment and then bill 

the new attacher for that work. 

However, we clarify that we are not 

precluding existing attachers and the 

utility from doing non-reimbursable 

work on their equipment during the 15- 

day notice period. We find that, 

contrary to the requests of certain 

attachers, providing an existing attacher 

an affirmative right to perform makeready and bill the new attacher for such 

work during the notice period would 

undermine one of the main benefits of 


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46820 Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations 

OTMR: Decreasing make-ready costs for 

new attachers. 

57. We also adopt the BDAC 

recommendation that we require the 

new attacher to notify an affected entity 

immediately if the new attacher’s 

contractor damages another company’s 

equipment or causes an outage that is 

reasonably likely to interrupt the 

provision of service. We extend this 

requirement to damage to the utility’s 

equipment as well. Upon receiving 

notice of damaged equipment or a 

service outage, the utility or existing 

attacher can either complete any 

necessary remedial work and bill the 

new attacher for the reasonable costs 

related to fixing the damage or outage or 

require the new attacher to fix the 

damage or outage at its expense 

immediately following notice from the 

utility or existing attacher. Upon notice 

from the existing attacher or the utility 

to fix damages or an outage caused by 

the new attacher, the new attacher must 

complete the repair work before it can 

resume its make-ready work. Where the 

utility or the existing attacher elects to 

fix the damage or outage, the new 

attacher can only continue with makeready work if it does not interfere with 

the repair work being conducted by the 

utility or existing attacher. This 

requirement for immediate notification 

and repair of damages or outages caused 

by a new attacher’s contractor addresses 

the concern of existing attachers and 

utilities that the new attacher’s 

contractor may damage equipment or 

cause an outage that would harm 

consumers or threaten safety without 

the existing attacher’s or utility’s 

knowledge or an opportunity for prompt 

recourse. 

(vi) Post Make-Ready 

58. We agree with commenters that 

suggest that the OTMR process should 

include time for post-make-ready 

inspections and the quick repair of any 

defective make-ready work. To give 

existing attachers and the utility an 

opportunity to correct any errors and to 

further encourage quality work by the 

new attacher, we adopt the BDAC’s 

recommendation that the new attacher 

must provide notice to the utility and 

affected existing attachers within 15 

days after the new attacher has 

completed OTMR work on a particular 

pole. To minimize paperwork burdens, 

the new attacher may batch in one postmake-ready notice all poles completed 

in a particular 15-day span. For 

example, if a pole attachment project 

took 30 days to complete, the new 

attacher could provide one notice to the 

existing attacher with the first 15 days’ 

worth of work and a second notice on 

day 30 with the remainder of the work. 

In its post-make ready notice, the new 

attacher must provide the utility and 

existing attachers at least a 90-day 

period for the inspection of make-ready 

work performed by the new attacher’s 

contractors. This post-make-ready 

inspection and remedy requirement 

gives the utility and existing attachers 

their own opportunity to ensure that 

work has been done correctly. 

59. To allow new attachers to timely 

address allegations of needed repair 

work, we adopt rules requiring that 

within 14 days after any post-make 

ready inspection, the utility and the 

existing attachers notify the new 

attacher of any damage or any code (e.g., 

safety, electrical, engineering, 

construction) violations caused to their 

equipment by the new attacher’s makeready work and provide adequate 

documentation of the damage or the 

violations. The utility or existing 

attacher can either complete any 

necessary remedial work and bill the 

new attacher for the reasonable costs 

related to fixing the damage or 

violations, or require the new attacher to 

fix the damage or violations at its 

expense within 14 days following notice 

from the utility or existing attacher. We 

provide the utility or existing attacher 

options regarding repair to maximize 

their flexibility in addressing issues for 

which they are not at fault. The 

safeguards we establish in the OTMR 

process collectively give the new 

attacher the incentive to ensure its 

contractor performs work correctly; we 

therefore expect the invocation of this 

remediation procedure to be infrequent. 

60. We disagree with Verizon’s 

argument that we should refrain from 

establishing a timeframe for the utility 

and existing attachers to inspect 

completed make-ready work because 

deadlines for raising claims about 

property damage are ‘‘typically 

governed by state contract or property 

law.’’ We find it appropriate to establish 

a post-inspection timeline at the federal 

level so that parties can identify any 

defective make-ready work that has the 

potential to cause harm or injury to 

persons or equipment and remedy it as 

soon as possible. We also find that the 

deadlines we establish for the postmake-ready timeline give the existing 

attachers and the utility time that is 

sufficient but not unnecessarily long to 

inspect the work and give the new 

attacher reasonable time to fix any 

equipment damage and to rectify any 

potentially unsafe conditions. 

d. Indemnification 

61. We conclude that new attachers 

should be responsible and liable for any 

damage or non-compliance resulting 

from work completed by the new 

attacher during OTMR. The OTMR rules 

we adopt provide a process for existing 

attachers to timely identify damage to 

their equipment that occurs during the 

OTMR process and to arrange for its 

repair. To the extent that process proves 

insufficient, injured parties may seek 

judicial relief based on State law claims. 

62. We find, consistent with the 

BDAC’s recommendation, that federallyimposed indemnification is not 

necessary. The record indicates that the 

existing legal regime, including contract 

and tort law, provides sufficient 

protection for existing attachers without 

broad federal regulatory intrusion. The 

repair process we adopt in our OTMR 

rules adds an additional layer of 

protection. With these other remedies 

already available, we disagree with 

NCTA that a Commission-mandated 

indemnification requirement is the 

‘‘only practical mechanism by which an 

existing attacher can hold a new 

attacher or its contractor accountable for 

the consequences of performing shoddy 

work’’ in situations where there is no 

privity of contract between the parties 

or a statutory requirement to hold 

harmless existing attachers. Rather, we 

find that adding a federal layer of 

indemnification would not be efficient 

or assist in speeding broadband 

deployment. Further, we agree with 

Google Fiber that indemnification 

obligations are typically not one-sizefits-all provisions, such that it would be 

difficult to craft a regulatory solution 

that is workable in all situations. 

2. Targeted Changes to the 

Commission’s Existing Pole Attachment 

Process 

63. To speed broadband deployment 

for new attachments that are not eligible 

for our OTMR process and for new 

attachers that prefer not to use the 

OTMR process, we make targeted 

changes to the rules governing the 

existing pole attachment timeline. Our 

targeted changes include: 

• Revising the definition of a 

complete pole attachment application 

and establishing a timeline for a utility’s 

determination whether an application is 

complete; 

• Requiring utilities to provide at 

least three business days’ advance 

notice of any surveys to the new 

attacher and each existing attacher; 

• Establishing a 30-day deadline for 

completion of all make-ready work in 

the communications space; 

• Eliminating the 15-day utility makeready period for communications space 

attachments; 


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• Streamlining the utility’s notice 

requirements; 

• Enhancing the new attacher’s selfhelp remedy by making the remedy 

available for surveys and make-ready 

work for all attachments anywhere on 

the pole in the event that the utility or 

the existing attachers fail to meet the 

required deadlines; 

• Revising the contractor selection 

process for a new attacher’s self-help 

work; and 

• Requiring utilities to provide 

detailed estimates and final invoices to 

new attachers regarding make-ready 

costs. 

64. We agree with numerous 

commenters that with respect to the 

Commission’s current pole attachment 

timeline, we should refrain from 

adopting wholesale changes at this time. 

As a result, while we make changes 

aimed at speeding broadband 

deployment where the record indicates 

such changes would be workable and 

beneficial, we leave unchanged the pole 

attachment deadlines for the existing 

application review/survey, estimate, 

and acceptance stages. 

a. Creating a More Efficient Pole 

Attachment Timeline 

(i) Review of Application for 

Completeness 

65. For the reasons discussed above, 

we adopt rules reflecting the same 

improvements to our definition of a 

complete pole attachment application 

and the same completeness review 

process as we do for the OTMR 

timeline, subject to one change to adjust 

for the fact that the utility conducts the 

survey under the non-OTMR process. 

We adopt the BDAC’s recommendation 

and revise our existing pole attachment 

rules to define an application as 

complete if it provides the utility with 

the information necessary under its 

procedures, as specified in a master 

service agreement or in publiclyavailable requirements at the time of 

submission of the application, to begin 

to survey the affected poles. While the 

current definition of a complete 

application only requires information 

necessary under the utility’s procedures, 

this revised definition requires more 

transparency on behalf of the utility as 

the master service agreement and public 

requirements will be available to new 

attachers as they prepare their 

applications. In addition, to prevent 

unnecessary delays in starting the pole 

attachment process, we adopt the same 

BDAC-recommended timeline as in our 

OTMR process for a utility to determine 

whether a pole attachment application 

is complete. We agree with ACA that 

providing a specific timeline for 

determining completeness offers all 

parties predictability about the start of 

the OTMR process and avoids 

unnecessary delays. We also follow the 

BDAC OTMR recommendation that ties 

deadlines to receipt of the application 

by the utility, because the utility cannot 

begin to review the application until it 

has been received. 

(ii) Review of Whether To Grant 

Complete Application and Survey 

66. We decline to shorten the 45-day 

period in our existing rules during 

which the utility must review a 

complete pole attachment application 

and survey the affected poles for nonOTMR projects. In so doing, we reject 

proposals by some attachers that we 

shorten the application review and 

survey stage because we agree with 

utility commenters that the existing 45- 

day timeframe accounts for demands on 

existing workforce, safety concerns, 

volume of pole attachment applications, 

and timing constraints. We also decline 

to adopt ACA’s proposal that a pole 

attachment application be deemed 

granted if the utility fails to act on an 

application within the 45-day 

timeframe. Failure by the utility to act 

on an application within the prescribed 

time period is a violation of our rules 

and, accordingly, use of our recentlyadopted expedited pole access 

complaint procedure is available as a 

remedy. We also clarify that nothing in 

our rules precludes a utility from using 

a new attacher to conduct a survey of 

the affected poles, at the utility’s 

expense, consistent with the 

requirements in 47 CFR 1.1411(i)(1). 

67. To make the survey and 

application review process more 

efficient and transparent, however, we 

adopt a change recommended by the 

BDAC and several commenters to 

require utilities to facilitate survey 

participation by new and existing 

attachers. Specifically, in performing a 

field inspection as part of any preconstruction survey, we modify our 

rules to require a utility to permit the 

new attacher and any existing attachers 

potentially affected by the new 

attachment to be present for any pole 

surveys. We require the utility to use 

commercially reasonable efforts to 

provide at least three business days’ 

advance notice of any surveys to the 

new attacher and each existing attacher, 

such notice to include the date, time, 

and location of the survey, and the 

name of the contractor performing the 

survey. To prevent coordination 

problems that may invite delay, we do 

not require a utility to set a date for the 

survey that is convenient for the 

affected attachers. However, in the case 

of reasonable scheduling conflicts, we 

encourage the parties to work together 

to find a mutually-agreeable time for the 

survey. We find that advance notice of 

three business days strikes the right 

balance between providing sufficient 

time to accommodate coordination with 

the attachers and the need to keep the 

pole attachment process moving 

forward in a timely manner. To provide 

utilities some measure of flexibility in 

complying with this requirement while 

still encouraging joint surveys to occur, 

we hold utilities to a ‘‘commercially 

reasonably efforts standard’’ to make the 

notifications. 

68. In addition, to prevent 

unnecessary and wasteful duplication of 

surveys, we adopt a change to our rules 

that allows utilities to meet the survey 

requirement of our existing timeline by 

electing to use surveys previously 

prepared on the poles in question by 

new attachers. In the OTMR context, 

new attachers will perform the 

necessary surveys to determine whether 

make-ready work is simple or complex 

prior to the submission of an 

application. To the extent such work is 

complex, it will be governed by our 

existing pole attachment timeline where 

the utility performs the survey and must 

give advance notice of the survey to 

affected attachers. However, we will 

allow the utility to elect to use the new 

attacher’s previously performed survey 

(performed as part of the OTMR pole 

attachment process) to fulfill its survey 

requirements, rather than require the 

utility to perform a potentially 

duplicative survey. The utility still must 

notify affected attachers of its intent to 

use the new attacher’s survey and 

provide a copy of the new attacher’s 

survey in its notice. If the utility is 

relying solely on the new attacher’s 

survey to fulfill the survey 

requirements, we agree with Crown 

Castle that it is appropriate to shorten 

the survey period from 45 days to 15 

days to speed deployment. 

(iii) Make-Ready Stage 

69. To speed broadband deployment, 

we amend our rules to reduce the 

deadlines for both simple and complex 

make-ready from 60 to 30 days (and 

from 105 to 75 days for large requests 

in the communications space). To 

account for the unique circumstances 

involved with attachments above the 

communications space, we maintain the 

current make-ready deadline of 90 days 

(and 135 days for large requests) for 

these attachments. We also adopt 

modified notice requirements to 

apportion more of the responsibility for 

promoting make-ready timeline 


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compliance from utilities to new 

attachers, because new attachers have 

the greater incentive to drive adherence 

to the make-ready deadline. 

70. Make-ready deadlines. Based on 

the current record and the BDAC’s 

recommendation, we adopt a change to 

our rules that shortens the make-ready 

deadline for new pole attachments in 

the communications space to promote 

broadband deployment without 

imposing undue risk to safety or 

reliability. We agree with Crown Castle 

that adoption of a shorter make-ready 

period in the communications space 

will promote the efficient completion of 

make-ready by encouraging utilities and 

existing attachers to prioritize 

attachment work. We also agree with 

Google Fiber that a 30-day period for 

communications space make-ready (and 

75 days for larger requests) will ensure 

that existing attachers have the 

opportunity to control make-ready that 

is expected to affect their services, while 

reducing delays and increasing 

efficiency for new attachers. The makeready timelines we adopt for work in 

the communication space should be 

sufficient for both simple and complex 

work. 

71. While the BDAC recommended 

that we impose a 30-day deadline for 

complex make-ready work in the 

communications space, it did not make 

a recommendation on the deadline for 

simple make-ready work that is not 

subject to OTMR. We find that there is 

value to maintaining consistency of 

deadlines in the communications space; 

thus, we adopt the 30-day deadline for 

all communications space make-ready 

work. 

72. To account for the safety concerns 

of working above the communications 

space, we maintain our current makeready deadlines of 90 days (and 135 

days for large requests). In establishing 

the existing deadlines for make-ready 

above the communications space, which 

are 30 days longer than the existing 

deadlines for make-ready work in the 

communications space, the Commission 

pointed to the safety risks associated 

with working on attachments in, near, 

or above the electric space and the 

recognized lack of real-world experience 

at the time with pole-top attachments. 

We recognize that both utilities and 

attachers have more experience with 

these types of attachments than when 

the Commission adopted these 

deadlines in 2011, but the same safety 

risks identified by the Commission in 

2011 are still relevant today, and 

therefore we continue to allow for more 

time to complete make-ready above the 

communications space because such 

attachments involve work near electrical 

wires that require more careful work 

and more experienced contractors. 

However, we recognize the important 

role that attachments above the 

communications space can have in 

facilitating faster and more efficient 

wireless deployment (particularly the 

small cell deployments necessary for 

advanced 5G networks), and therefore, 

as described below, we make the selfhelp remedy applicable to these 

attachments for the first time, which we 

anticipate will speed deployment by 

providing a strong incentive for utilities 

and existing attachers to meet their 

make-ready deadlines and give new 

attachers the tools to deploy quickly 

when deadlines are not met. 

73. For all attachments, we retain as 

a safeguard our existing rule allowing 

utilities to deviate from the make-ready 

timelines for good and sufficient cause 

when it is infeasible for the utility to 

complete make-ready work within the 

prescribed time frame. This safeguard 

will mitigate the effects of our decrease 

in the make-ready time periods by 

carving out edge cases where timely 

completion is truly infeasible and the 

utility wishes to retain control of the 

make-ready process. It aids us in 

balancing the interests of utilities to 

control make-ready in non-OTMR 

circumstances and the needs of new 

attachers to obtain timely completion of 

OTMR or the ability to employ self-help. 

We agree with ACA that a utility that so 

deviates may do so for a period no 

longer than necessary to complete makeready on the affected poles and must 

immediately notify, in writing, the new 

attacher and affected existing attachers, 

identify the affected poles, and include 

a detailed explanation of the basis for 

the deviation and a new completion 

date. A new attacher may challenge the 

utility’s determination for deviating 

from the make-ready timeline if the 

utility’s rationale is not justified by good 

and sufficient cause. 

74. Recognizing that our new timeline 

will put pressure on existing attachers, 

particularly with respect to poles that 

have multiple attachers that must 

conduct complex make-ready work 

within a shorter timeframe, we adopt a 

new safeguard for existing attachers. 

Specifically, we adopt the BDAC 

recommendation that an existing 

attacher may deviate from the 30-day 

deadline for complex make-ready in the 

communications space (or the 75-day 

deadline in the case of larger orders) for 

reasons of safety or service interruption 

that renders it infeasible for the existing 

attacher to complete complex makeready by the deadline. An existing 

attacher that so deviates must 

immediately notify, in writing, the new 

attacher and other affected existing 

attachers, identify the affected poles, 

and include a detailed explanation of 

the basis for the deviation and a new 

completion date, which cannot extend 

beyond 60 days from the date of the 

utility make-ready notice to existing 

attachers (or 105 days in the case of 

larger orders). The existing attacher 

shall deviate from the complex makeready time limits for a period no longer 

than necessary to complete make-ready 

on the affected poles. If the complex 

make-ready work is not complete within 

60 days from the date that the existing 

attacher sends the notice to the new 

attacher, then the new attacher can 

complete the work using a utilityapproved contractor. If no utilityapproved contractor is available, then 

the new attacher must follow the 

procedures outlined infra for choosing 

an appropriate contractor. We require 

existing attachers to act in good faith in 

obtaining an extension, and we caution 

that obtaining an extension as a routine 

matter or for the purpose of delaying the 

new attachment is inconsistent with 

acting in good faith. If a new attacher 

believes the existing attacher is not 

using the extension period in good faith, 

it may file a complaint with the 

Commission. 

75. We further accelerate 

communications space attachments by 

eliminating the optional 15-day 

extension period for the utility to 

complete the make-ready work. Many 

commenters and the BDAC support 

elimination of the extra 15 days at the 

end of the make-ready stage because 

few, if any, utilities actually invoke the 

extension. However, with respect to 

work above the communications space, 

we retain the optional 15-day extension 

period for utility make-ready. Because 

we are extending a new attacher’s selfhelp remedy to attachments above the 

communications space, more utilities 

may need to use the additional 15 days 

to perform such make-ready work 

themselves. Further, retaining this extra 

period promotes safety and reliability of 

the electric grid by granting the utility 

extra time to undertake the work itself. 

To the extent utilities do not intend to 

avail themselves of the additional 15 

days before a new attacher resorts to 

self-help above the communications 

space, we strongly encourage utilities to 

communicate that intent as soon as 

possible to new attachers so that the 

new attacher can promptly begin makeready work. 

76. Notice and New Attacher Role. We 

adopt the BDAC recommendation that 

when a utility provides the required 

make-ready notice to existing attachers, 

then it must provide the new attacher 


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with a copy of the notice, plus the 

contact information of existing attachers 

to which the notices were sent, and 

thereafter the new attacher (rather than 

the utility) must take responsibility for 

encouraging and coordinating with 

existing attachers to ensure completion 

of make-ready work on a timely basis. 

We adopt this additional notice 

requirement to empower the new 

attacher to promote the timely 

completion of make-ready. At the same 

time, we expect existing attachers to 

respond in a timely manner to requests 

from the new attacher for information, 

including estimated completion dates 

and work status updates, and to 

cooperate with the new attacher and 

other existing attachers to complete 

make-ready prior to the date set in the 

notice. 

b. Enhancing the Self-Help Remedy 

77. In the interest of speeding 

broadband deployment, we modify our 

rules to provide a self- help remedy to 

new attachers for work above the 

communications space, including the 

installation of wireless 5G small cells, 

when the utility or existing attachers 

have failed to complete make-ready 

work within the required time frames. 

We recognize that despite widespread 

agreement that make-ready work often 

extends past Commission-prescribed 

timelines, and new attachers’ frustration 

with delays caused by missed deadlines 

for make-ready work, the record shows 

that, at present, new attachers rarely 

invoke the existing self-help remedy in 

the communications space. In the 

interest of ensuring that new attachers 

are able to exercise the self-help 

remedy, we take this opportunity to 

reiterate its availability and modify our 

rules to provide a process for new 

attachers to communicate their intent to 

engage in self-help to the utility and 

existing attachers. These steps, together 

with the changes we make to the 

process for new attachers to hire 

contractors to conduct self-help work, 

should encourage the use of self-help 

where necessary and strengthen the 

incentive for utilities and existing 

attachers to complete work on time. 

78. Self-Help Above the 

Communications Space. In the 2011 

Pole Attachment Order, the Commission 

declined to apply a self-help remedy for 

survey and make-ready work for pole 

attachments ‘‘located in, near, or above 

the electric space.’’ After further 

consideration and in light of the 

national importance of a speedy rollout 

of 5G services, we amend our rules to 

allow new attachers to invoke the selfhelp remedy for work above the 

communications space, including the 

installation of wireless 5G small cells, 

when utilities and existing attachers 

have not met make-ready work 

deadlines. Accenture estimates that 

wireless providers will invest $275 

billion dollars over the next decade to 

deploy 5G, which is expected to create 

three million new jobs across the 

country and boost the U.S. gross 

domestic product by half a trillion 

dollars. As CTIA explains, the network 

infrastructure needed to support 5G 

cannot wait, and it is incumbent on the 

Commission to quickly eliminate 

barriers to, and encourage investment 

in, 5G deployment. Although we do not 

allow wireless attachers to perform their 

own work in the first instance for safety 

and equipment integrity reasons, we 

nonetheless give them the ability to use 

self-help to complete make-ready when 

utilities miss their deadline. 

79. Until now, the only remedy for 

missed deadlines for work above the 

communications space has been filing a 

complaint with the Commission’s 

Enforcement Bureau. We agree with 

commenters that argue that complaints 

are an important but insufficient tool for 

encouraging compliance with our 

deadlines and speeding broadband 

deployment. We expect the availability 

of self-help above the communications 

space will strongly encourage utilities 

and existing attachers to meet their 

make-ready deadlines and give new 

attachers the tools to deploy quickly 

when they do not. As described by 

Crown Castle, the extension of the selfhelp remedy to attachments above the 

communications space closes a 

significant gap in the Commission’s 

rules that leaves Crown Castle without 

a meaningful remedy when the electric 

utility fails to perform make-ready work 

in a timely fashion. 

80. We recognize the valid concerns 

of utilities regarding the importance of 

safety and equipment integrity, 

particularly in the electric space, and 

we take several steps to address these 

important issues. As an initial matter, in 

response to concerns expressed by 

utilities, we maintain the 90-day period 

(135 for larger requests) for the utility to 

complete make-ready. In the event that 

new attachers must resort to self-help 

above the communications space, the 

new attacher must use a qualified 

contractor, that is pre-approved by the 

utility, to do the work. While some 

utilities argue that contractors working 

for third parties will not adhere to the 

utility’s procedures for ensuring the 

integrity of electric distribution 

facilities, the utility will have full 

control over the contractor pre-approval 

process and therefore will be able to 

require that contractors who wish to be 

placed on the utility-approved list 

adhere to utility protocols for working 

in the electric space, even when the 

contractor is retained by a third-party 

communications attacher. In addition, 

we reiterate that utilities will have the 

opportunity to identify and address any 

safety and equipment concerns when 

they receive advance self-help notice 

and post-completion notice from the 

new attacher. Our rules also contain 

additional pre-existing protections for 

utilities that empower them to promote 

safety and reliability. Finally, utilities 

may prevent self-help from being 

invoked by completing make-ready on 

time. Because electric utilities always 

will have the opportunity to complete 

make-ready work before self-help is 

triggered, have control over which 

contractors will be allowed to perform 

self-help, and will have the opportunity 

to be present when the self-help makeready work is performed, we disagree 

with FirstEnergy that our new rules risk 

loss of control for every expansion of 

capacity to accommodate new 

attachments. 

81. Pole Replacements. We agree with 

parties that argue that the self-help 

remedy should not be available when 

pole replacements are required as part 

of make-ready. The record shows that 

pole replacements can be complicated 

to execute and are more likely to cause 

service outages or facilities damage. 

Given the particularly disruptive nature 

of this type of work, we make clear that 

pole replacements are not eligible for 

self-help. 

82. Self-Help Notices. Similar to the 

pre- and post-work notice requirements 

we adopt in the new OTMR process, 

and consistent with the BDAC’s 

recommendation, we require new 

attachers to give affected utilities and 

existing attachers (1) no less than three 

business days advance notice for selfhelp surveys and five days’ advance 

notice of when self-help make-ready 

work will be performed and a 

reasonable opportunity to be present, 

and (2) notice no later than 15 days after 

make-ready is complete on a particular 

pole so that they have an opportunity to 

inspect the make-ready work. Just as in 

the OTMR context, the new attacher’s 

post-make-ready notice must provide 

the affected utility and existing 

attachers at least 90 days from receipt in 

which to inspect the make-ready work 

done on a particular pole. The affected 

utility and existing attachers have 14 

days after completion of their inspection 

to notify the new attacher of any damage 

to their equipment or any code (e.g., 

safety, electrical, engineering, 

construction) violations caused by 

make-ready conducted by the new 


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attacher. If the utility or existing 

attachers discover damage or any code 

violations caused by make-ready 

conducted by the new attacher on 

equipment belonging to the utility or an 

existing attacher, then the utility or 

existing attacher shall inform the new 

attacher and provide adequate 

documentation of the damage or code 

violations. The utility or existing 

attacher may either (A) complete any 

necessary remedial work and bill the 

new attacher for the reasonable costs 

related to fixing the damage or code 

violations, or (B) require the new 

attacher to fix the damage or code 

violations at its expense within 14 days 

following notice from the utility or 

existing attacher. 

83. Just as in the OTMR context, the 

advance notice must include the date 

and time of the work, the nature of the 

work, and the name of the contractor 

being used by the new attacher. Similar 

to our finding with regard to the OTMR 

process, we find that the utility and 

existing attachers should be responsible 

for any expenses associated with 

double-checking the self-help work 

performed by the new attacher’s 

contractors, including any post-makeready inspections. As in the OTMR 

context, we also require the new 

attacher to provide immediate notice to 

the affected utility and existing 

attachers if the new attacher’s contractor 

damages equipment or causes an outage 

that is reasonably likely to interrupt the 

provision of service. Upon receiving 

notice of damaged equipment or a 

service outage, the utility or existing 

attacher can either complete any 

necessary remedial work and bill the 

new attacher for the reasonable costs 

related to fixing the damage or require 

the new attacher to fix the damage at its 

expense immediately following notice 

from the utility or existing attacher. 

Upon notice from the existing attacher 

or the utility to fix damages caused by 

a contractor, the new attacher must 

complete the repair work before it can 

resume its make-ready work. Where the 

utility or the existing attacher elects to 

fix the damage, the new attacher can 

only continue with make-ready work if 

it does not interfere with the repair 

work being conducted by the utility or 

existing attacher. We find that these 

self-help notices will promote safe, 

reliable work and provide the 

opportunity for corrections where 

needed, as well as allow utilities and 

existing attachers to alert their 

customers of the work. In this context, 

we also find that the notices will help 

to address complaints that utilities are 

not receiving consistent notices from 

attachers regarding critical steps in the 

pole attachment process. 

84. At the request of numerous 

commenters, we also take this 

opportunity to reiterate that under our 

existing rules, the make-ready clock 

runs simultaneously and not 

sequentially for all existing attachers, 

and the utility must immediately notify 

at the same time all entities with 

existing attachments that are affected by 

the proposed make-ready work. We 

recognize that coordinating work among 

existing attachers may be difficult, 

particularly for poles with many 

attachments, and existing attachers that 

are not the first to move may in some 

circumstances receive limited or even 

no time for work during the make-ready 

stage. Despite these challenges, we 

expect utilities, new attachers, and 

existing attachers to work cooperatively 

to ensure that pole attachment deadlines 

are met. If others do not meet their 

deadlines, new attachers then may 

invoke the self-help remedy. 

c. Contractor Selection for Self-Help 

85. We adopt different approaches to 

new attacher contractor selection for 

simple and non-simple self-help makeready. Given that simple self-help and 

OTMR are substantially similar, we 

adopt the same approach to contractor 

selection for simple self-help in the 

communications space as for OTMR, 

and we do so for the same reasons set 

forth above. Thus, consistent with the 

OTMR regime: 

• A new attacher electing self-help for 

simple work in the communications 

space must select a contractor from a 

utility-maintained list of qualified 

contractors, where such a list is 

available. The contractor must meet the 

same safety and reliability criteria as 

contractors authorized to perform 

OTMR work. New and existing attachers 

may request that qualified contractors 

be added to the utility’s list and the 

utility may not unreasonably withhold 

its consent for such additions. 

• Where no utility-maintained list is 

available, or no utility-approved 

contractor is available within a 

reasonable time period, the new attacher 

must select a contractor that meets the 

same safety and reliability criteria as 

contractors authorized to perform 

OTMR work and any additional nondiscriminatory, written, and publiclyavailable criteria relating to safety and 

reliability that the utility specifies. The 

utility may veto the new attacher’s 

contractor selection so long as it offers 

another available, qualified contractor. 

86. For complex work and work above 

the communications space, we take a 

different approach and require new 

attachers to select a contractor from the 

utility’s list. We also require utilities to 

make available and keep an up-to-date 

a reasonably sufficient list of contractors 

it authorizes to perform complex and 

non-communications space self-help 

surveys and make-ready work. We thus 

maintain our existing contractor 

selection requirements as to complex 

self-help in the communications space 

and extend those requirements to selfhelp above the communications space. 

87. We treat the utility list as 

mandatory for complex and above the 

communications space work for several 

reasons. These types of make-ready 

involve greater risks than simple makeready, and we agree with numerous 

commenters that utility selection of 

eligible contractors promotes safe and 

reliable work in more challenging 

circumstances. Although the current 

selection process sometimes entails 

delays where utilities fail to provide a 

list of approved contractors, we find 

that as to complex work and work above 

the communications space—which 

poses heightened safety and reliability 

risks—the benefits of the current 

approach outweigh its costs. We 

recognize that self-help above the 

communications space is novel and 

poses particularly heightened safety and 

reliability risks. We therefore find it 

especially important to give the utility 

control over who performs such work. 

In reaching this conclusion, we decline 

to adopt the BDAC’s recommendation 

that utilities need no longer provide, 

and requesting attachers need not use, 

utility-approved contractors to complete 

complex make-ready work in the 

communications space under the selfhelp remedy. 

88. Although we treat the utility list 

as mandatory for complex and above the 

communications space make-ready, we 

adopt a protective measure to prevent 

the utility list from being a choke-point 

that prevents deployment. The record 

indicates that some new attachers have 

been unable to exercise their self-help 

remedy because a list of utilityapproved contractors was not available. 

To alleviate this problem for complex 

and above the communications space 

work, we set forth in our rules—as we 

do in the context of OTMR and simpleself-help—that new and existing 

attachers may request that qualified 

contractors be added to the utility’s list 

and that the utility may not 

unreasonably withhold its consent for 

such additions. As in the context of 

OTMR and simple self-help, to be 

reasonable, a utility’s decision to 

withhold consent must be prompt, set 

forth in writing that describes the basis 

for rejection, nondiscriminatory, and 


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based on fair application of 

commercially reasonable requirements 

for contractors relating to issues of 

safety or reliability. 

d. Detailed Make-Ready Costs 

89. To facilitate the planning of more 

aggressive deployments, we adopt 

additional requirements to improve the 

transparency and usefulness of the 

make-ready cost estimates currently 

required under our rules. We require 

estimates of all make-ready charges to 

be detailed and include documentation 

that is sufficient to determine the basis 

for all charges, as well as similarly 

detailed post-make-ready invoices. 

90. The record reflects frustration over 

the lack of transparency of current 

estimates of make-ready work charges. 

ACA, Lumos, Crown Castle, and other 

commenters express support for a 

requirement that utilities provide 

detailed, itemized estimates and final 

invoices of all necessary make-ready 

costs. They, along with other 

commenters, argue that, in many cases, 

utilities currently do not provide 

detailed estimates or detailed final 

invoices. They claim that where utilities 

do not detail the basis of potential or 

actual charges, new attachers may 

reasonably fear that utilities can 

potentially include costs that are 

unnecessary, inappropriately inflated, 

or that attaching entities could easily 

avoid. Numerous commenters describe 

experiencing ‘‘bill shock,’’ where a 

utility’s make-ready invoices far exceed 

the utility’s initial estimates, and add 

that the lack of transparency of makeready costs inhibits their ability to plan 

network expansions. Given the 

frustration reflected in the record, we 

find that requiring detailed make-ready 

cost estimates and post-make-ready 

invoices will improve transparency in 

the make-ready process and better 

enable providers to plan broadband 

buildouts. 

91. We further clarify that our current 

rules require the utility to provide 

estimates for all make-ready work to be 

completed, regardless of what party 

completes the work. Although some 

utilities claim they are poorly 

positioned to provide estimates for 

make-ready work other than their own, 

we continue to find that utilities are best 

positioned to compile and submit these 

make-ready estimates to new attachers 

due to their pre-existing and ongoing 

relationships with the existing attachers 

on their poles. We recognize that in 

many circumstances the utility will not 

be able to prepare on its own an 

estimate for other existing attachers’ 

make-ready work; therefore, we clarify 

that utilities may comply with this 

requirement by compiling estimates 

from third-parties for submission to the 

new attacher. We further clarify that 

where the utility compiles third-party 

estimates, it is responsible only for 

compilation and transmission—it is not 

responsible for the accuracy or content 

of the estimates. We do not require 

utilities to compile and submit final 

invoices of make-ready work performed 

by third-party existing attachers. To the 

extent that the utility is an existing 

attacher, it is still responsible, where 

applicable, for providing a final invoice. 

We anticipate that existing attachers 

will have sufficient incentives to ensure 

that their final invoice reaches the new 

attacher so that they receive 

compensation for performed work. 

92. We require the utility to detail all 

make-ready cost estimates and final 

invoices on a per-pole basis when 

requested by the new attacher. While we 

recognize that requiring utilities to 

provide costs on a per-pole basis may be 

more burdensome than providing a less 

granular estimate, we find that a poleby-pole estimate may be necessary to 

enable new attachers to understand the 

costs of deployment and to make 

informed decisions about altering their 

deployment plans if make-ready costs 

on specific poles could prove to be costprohibitive. Requiring per-pole 

estimates and invoices upon request 

will also enable new attachers to better 

determine whether invoices are 

accurate, saving new attachers the 

unnecessary time and cost they 

currently devote to such a task. The 

record shows that certain fixed costs are 

not necessarily charged on a per-pole 

basis (e.g., traffic control, lock-out/tagout, truck rolls), and therefore the rules 

we adopt today allow for such fixed 

costs to be submitted on a per-job basis, 

rather than a pole-by-pole basis, even 

where a pole-by-pole estimate or invoice 

is requested. 

93. As part of the detailed estimate, 

the utility must disclose to the new 

attacher its projected material, labor, 

and other related costs that form the 

basis of its estimate, including 

specifications of what costs, if any, the 

utility is passing through to the new 

attacher from the utility’s use of a thirdparty contractor. The utility must also 

provide documentation that is sufficient 

to determine the basis of all charges in 

the final invoice, including any 

material, labor and other related costs. 

While we understand that this 

requirement places a burden on utilities, 

we agree with ACA that this 

requirement will allow new attachers to 

understand the basis for each individual 

make-ready charge and prevent disputes 

over ‘‘unreasonable or simply 

unnecessary make-ready charges in 

aggregate cost estimates.’’ However, if a 

utility completes make-ready and the 

final cost of the work does not differ 

from the estimate, it is not required to 

provide the new attacher with a final 

invoice. 

3. Treatment of Overlashing 

94. We codify our longstanding policy 

that utilities may not require an attacher 

to obtain its approval for overlashing. 

Consistent with Commission precedent, 

the utility also may not require preapproval for third party overlashing of 

an existing attachment, when such 

overlashing is conducted with the 

permission of an existing attacher. In 

addition, we adopt a rule that allows 

utilities to establish reasonable advance 

notice requirements. As the Commission 

has previously found, the ability to 

overlash often marks the difference 

between being able to serve a customer’s 

broadband needs within weeks versus 

six or more months when delivery of 

service is dependent on a new 

attachment. In codifying the existing 

overlashing precedent while adopting a 

pre-notification option, we seek to 

promote faster, less expensive 

broadband deployment while 

addressing important safety concerns 

relating to overlashing. We find that our 

codification will hasten deployment by 

resolving disagreements over whether 

utilities may impose procedural 

requirements on overlashing by existing 

attachers. 

95. While we make clear that preapproval for overlashing is not 

permissible, we adopt a rule that 

utilities may, but are not required to, 

establish reasonable pre-notification 

requirements including a requirement 

that attachers provide 15 days (or fewer) 

advance notice of overlashing work. 

Commenters express the concern that 

poles may not always be able to reliably 

support additional weight due to age 

and environmental factors, such as ice 

and wind, and as a result, overlashing 

even one additional cable on a pole may 

cause an overloading. Such pole 

overloading could hamper the 

installation or maintenance of electric 

facilities, or other on-going wireline or 

wireless facility installations. We find 

these concerns to be valid and 

supported by the record. Thus, we agree 

with commenters that allowing utilities 

to require advance notice will promote 

safety and reliability and allow the 

utility to protect its interests without 

imposing unnecessary burdens on 

attachers. If after receiving this advance 

notice, a utility determines, through its 

own engineering analysis, that there is 

insufficient capacity on the pole for a 


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noticed overlash, the noticed overlash 

would be inconsistent with generally 

applicable engineering practices, or the 

noticed overlash would compromise the 

pole’s safety or reliability, the utility 

must provide specific documentation 

demonstrating that the overlash creates 

a capacity, safety, reliability, or 

engineering issue within the 15 day 

advance notice period and the 

overlasher must address any identified 

issues—either by modifying its proposal 

or by explaining why, in the 

overlasher’s view, a modification is 

unnecessary—before continuing with 

the overlash. Consistent with our 

approach to OTMR and self-help, we 

adopt ACA’s position that a utility may 

not charge a fee to the party seeking to 

overlash for the utility’s review of the 

proposed overlash, as such fees will 

increase the costs of deployment. To the 

extent a utility can document that an 

overlash would require modifications to 

the pole or replacement of the pole, the 

overlasher will be held responsible for 

the costs associated with ensuring that 

the pole can safely accommodate the 

overlash. A utility may not deny access 

to overlash due to a pre-existing 

violation on the pole. However, a party 

that chooses to overlash on a pole with 

a safety violation and causes damage to 

the pole or other equipment will be held 

responsible for any necessary repairs. 

96. We find that an approach to 

overlashing that allows for prenotification without requiring preapproval is superior to more extreme 

solutions advocated by some 

commenters. We are unpersuaded, for 

example, by arguments that utility preapproval for overlashing is necessary to 

ensure safety. Pre-approval is not 

currently required, and the record does 

not demonstrate that significant safety 

or reliability issues have arisen from the 

application of the current policy. 

Rather, the record reflects that an 

advance notice requirement has been 

sufficient to address safety and 

reliability concerns, as it provides 

utilities with the opportunity to conduct 

any engineering studies or inspections 

either prior to the overlash being 

completed or after completion. For 

instance, after an Edison Electric 

Institute member received advance 

notice of overlashing on 5,186 poles, its 

inspection found that 716 of those poles 

‘‘ ‘had preexisting violations for failure 

to meet NESC requirements for 

clearance between communications 

attachments and power facilities.’ ’’ 

Similarly, in 2016, Oncor Electric 

Delivery in Texas received advance 

notice of overlashing and discovered 

13.8% of the poles had existing 

clearance violations between existing 

attachments and power facilities. 

Further requiring that attachers receive 

prior approval for overlashing would 

unnecessarily increase costs for 

attachers and delay deployment. 

97. We also take this opportunity to 

clarify several points related to 

overlashing. First, if the utility elects to 

establish an advance notice 

requirement, the utility must provide 

advanced written notice to attachers or 

include the requirement in its pole 

attachment agreements. We find that 

providing this guidance will give clarity 

to all parties as to when the utility must 

receive advance notice, thereby 

reducing the likelihood of disputes. 

Utilities may require pre-notification of 

up to 15 days, the same notice period 

that we adopt for OTMR attachments. 

We also emphasize that utilities may not 

use advanced notice requirements to 

impose quasi-application or quasi-preapproval requirements, such as 

requiring engineering studies. Finally, 

just as new attachers electing OTMR are 

responsible for any corrective measures 

needed because of their work, in the 

event that damage to the pole or other 

existing attachment or safety or 

engineering standard violations result 

from overlashing, the overlasher will be 

responsible for any necessary repairs 

arising from such overlashing. Poorly 

performed overlashing can create safety 

and reliability risks, and the 

Commission has consistently found that 

overlashers must ensure that they are 

complying with reasonable safety, 

reliability, and engineering practices. To 

the extent that the pole owner wishes to 

perform an engineering analysis of its 

own either within the 15-day advance 

notice period or after completion of the 

overlash, the pole owner bears the cost 

of such an analysis. 

98. We agree with ACA that we 

should adopt a post-overlashing 

notification procedure comparable to 

the post-make ready notification 

procedure we adopt for OTMR. 

Therefore, we require that an 

overlashing party shall notify the 

affected utility within 15 days of 

completion of the overlash on a 

particular pole. The notice shall provide 

the affected utility at least 90 days from 

receipt in which to inspect the overlash. 

The utility has 14 days after completion 

of its inspection to notify the 

overlashing party of any damage or any 

code (e.g., safety, electrical, engineering, 

construction) violations to its 

equipment caused by the overlash. If the 

utility discovers damage or code 

violations caused by the overlash on 

equipment belonging to the utility, then 

the utility shall inform the overlashing 

party and provide adequate 

documentation of the damage or code 

violations. The utility may either 

complete any necessary remedial work 

and bill the overlashing party for the 

reasonable costs related to fixing the 

damage or code violations or require the 

overlashing party to fix the damage or 

code violations at its expense within 14 

days following notice from the utility. 

B. New Attachers Are Not Responsible 

for Preexisting Violations 

99. Consistent with the BDAC’s 

recommendation, we clarify that new 

attachers are not responsible for the 

costs associated with bringing poles or 

third-party equipment into compliance 

with current safety and pole owner 

construction standards to the extent 

such poles or third-party equipment 

were out of compliance prior to the new 

attachment. This includes situations 

where a pole has been ‘‘red tagged’’— 

that is, found to be non-complaint with 

safety standards and placed on a 

replacement schedule—so new attachers 

are not responsible for the cost of pole 

replacement. Although utilities have 

sometimes held new attachers 

responsible for the costs of correcting 

preexisting violations, this practice is 

inconsistent with our long-standing 

principle that a new attacher is 

responsible only for actual costs 

incurred to accommodate its 

attachment. The new attachment may 

precipitate correction of the preexisting 

violation, but it is the violation itself 

that causes the costs, not the new 

attacher. Holding the new attacher liable 

for preexisting violations unfairly 

penalizes the new attacher for problems 

it did not cause, thereby deterring 

deployment, and provides incentives for 

attachers to complete make-ready work 

irresponsibly and count on later 

attachers to fix the problem. This is true 

whether the make-ready work that 

corrects these preexisting violations is 

simple or complex. Also, if the new 

attacher chooses to repair a pre-existing 

violation it may seek reimbursement 

from the party responsible for the 

violation, including, if applicable, the 

utility. 

100. We also clarify that utilities may 

not deny new attachers access to the 

pole solely based on safety concerns 

arising from a pre-existing violation, as 

Lightower alleges sometimes occurs. 

Simply denying new attachers access 

prevents broadband deployment and 

does nothing to correct the safety issue. 

We also clarify that a utility cannot 

delay completion of make-ready while 

the utility attempts to identify or collect 

from the party who should pay for 

correction of the preexisting violation. 


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C. Addressing Outdated Rate Disparities 

101. In the interest of promoting 

infrastructure deployment, the 

Commission adopted a policy in 2011 

that similarly situated attachers should 

pay similar pole attachment rates for 

comparable access. Incumbent LECs 

allege, however, that electric utilities 

continue to charge pole attachment rates 

significantly higher than the rates 

charged to similarly situated 

telecommunications attachers, and that 

these higher rates inhibit broadband 

deployment. To address this problem, 

we revise our rules to establish a 

presumption that, for newly-negotiated 

and newly-renewed pole attachment 

agreements between incumbent LECs 

and utilities, an incumbent LEC will 

receive comparable pole attachment 

rates, terms, and conditions as a 

similarly-situated telecommunications 

carrier or a cable television system 

(telecommunications attachers). The 

utility can rebut the presumption with 

clear and convincing evidence that the 

incumbent LEC receives net benefits 

under its pole attachment agreement 

with the utility that materially 

advantage the incumbent LEC over other 

telecommunications attachers. 

102. As the Commission has 

recognized, historically, incumbent 

LECs owned approximately the same 

number of poles as electric utilities and 

were able to ensure just and reasonable 

rates, terms, and conditions for their 

attachments by negotiating long-term 

joint use agreements with utilities. 

These joint use agreements may provide 

benefits to the incumbent LECs that are 

not typically found in pole attachment 

agreements between utilities and other 

telecommunications attachers, such as 

lower make-ready costs, the right to 

attach without advance utility approval, 

and use of the rights-of-way obtained by 

the utility, among other benefits. By 

2011, however, incumbent LECs owned 

fewer poles than utilities, and the 

Commission found that incumbent LECs 

may not be in equivalent bargaining 

position with electric utilities in pole 

attachment negotiations in some cases. 

In 2011, the Commission determined 

that it had the authority to ensure that 

incumbent LECs’ attachments to other 

utilities’ poles are pursuant to rates, 

terms and conditions that are just and 

reasonable, and placed the burden on 

incumbent LECs to rebut the 

presumption that they are not similarly 

situated to an existing 

telecommunications attacher in order to 

obtain access on rates, terms, and 

conditions that are comparable to the 

existing telecommunications attacher. 

103. The record clearly demonstrates 

that incumbent LEC pole ownership 

continues to decline. Incumbent LECs 

argue that a reversal of the current 

presumption is warranted because 

incumbent LECs’ bargaining power visa`-vis utilities has eroded since 2011 as 

their percentage of pole ownership 

relative to utilities has dropped, thus 

resulting in increased attachment rates 

relative to their fellow 

telecommunications attachers. To 

bolster this claim, USTelecom provides 

the results of a recent member survey 

showing that its incumbent LEC 

members ‘‘pay an average of $26.12 [per 

year] to [investor-owned utilities] today 

in Commission-regulated states (an 

increase from $26.00 in 2008), 

compared to cable and CLEC provider 

payments to ILECs, which average $3.00 

and $3.75 [per year], respectively (a 

decrease from $3.26 and $4.45, 

respectively, in 2008).’’ 

104. We are convinced by the record 

evidence showing that, since 2008, 

incumbent LEC pole ownership has 

declined and incumbent LEC pole 

attachment rates have increased (while 

pole attachment rates for cable and 

telecommunications attachers have 

decreased). We therefore conclude that 

incumbent LEC bargaining power vis-a`- 

vis utilities has continued to decline. 

Therefore, based on these changed 

circumstances, we agree with 

incumbent LEC commenters’ arguments 

that, for new and newly-renewed pole 

attachment agreements between utilities 

and incumbent LECs, we should 

presume that incumbent LECs are 

similarly situated to other 

telecommunications attachers and 

entitled to pole attachment rates, terms, 

and conditions that are comparable to 

the telecommunications attachers. We 

conclude that, for determining a 

comparable pole attachment rate for 

new and newly-renewed pole 

attachment agreements, the 

presumption is that the incumbent LEC 

should be charged no higher than the 

pole attachment rate for 

telecommunications attachers 

calculated in accordance with 

§ 1.1406(e)(2) of the Commission’s rules. 

We find that applying the presumption 

in these circumstances will promote 

broadband deployment and serve the 

public interest; we agree with 

USTelecom that greater rate parity 

between incumbent LECs and their 

telecommunications competitors can 

energize and further accelerate 

broadband deployment. However, we 

recognize there may be some cases in 

which incumbent LECs may continue to 

possess greater bargaining power than 

other attachers, for example in 

geographic areas where the incumbent 

LEC continues to own a large number of 

poles. Therefore, we establish a 

presumption that may be rebutted, 

rather than a more rigid rule. 

105. We extend this rebuttable 

presumption to newly-negotiated and 

newly-renewed joint use agreements. A 

new or newly-renewed pole attachment 

agreement is one entered into, renewed, 

or in evergreen status after the effective 

date of this Third Report and Order, and 

renewal includes agreements that are 

automatically renewed, extended, or 

placed in evergreen status. Consistent 

with the Commission’s conclusion in 

2011, the pre-2011 pole attachment rate 

for telecommunications carriers will 

continue to serve as a reference point in 

complaint proceedings regarding 

agreements that materially advantage an 

incumbent LEC and which were entered 

into after the 2011 Pole Attachment 

Order and before the effective date of 

the Third Report and Order we release 

today. This includes circumstances 

where an agreement has been 

terminated and the parties continue to 

operate under an ‘‘evergreen’’ clause. 

106. We conclude that, by applying 

the presumption to new and newlyrenewed agreements, we will give 

incumbent LECs parity with similarlysituated telecommunications attachers 

and encourage infrastructure 

deployment by addressing incumbent 

LECs’ bargaining power disadvantage. 

We recognize that this divergence from 

past practice will impact privatelynegotiated agreements and so the 

presumption will only apply, as it 

relates to existing contracts, upon 

renewal of those agreements. Until that 

time, for existing agreements, the 2011 

Pole Attachment Order’s guidance 

regarding review of incumbent LEC pole 

attachment complaints will continue to 

apply. We disagree with utilities that 

argue that we should not apply the 

presumption to any existing agreements 

because existing joint use agreements 

were negotiated at a time of more equal 

bargaining power between the parties, 

and because incumbent LECs receive 

unique benefits under joint use 

agreements. To the extent incumbent 

LECs receive net benefits distinct from 

those given to other telecommunications 

attachers, a utility may rebut the 

presumption. 

107. Utilities can rebut the 

presumption we adopt today in a 

complaint proceeding by demonstrating 

that the incumbent LEC receives net 

benefits that materially advantage the 

incumbent LEC over other 

telecommunications attachers. Such 

material benefits may include paying 


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significantly lower make-ready costs; no 

advance approval to make attachments; 

no post-attachment inspection costs; 

rights-of-way often obtained by electric 

company; guaranteed space on the pole; 

preferential location on pole; no 

relocation and rearrangement costs; and 

numerous additional rights such as 

approving and denying pole access, 

collecting attachment rents and input on 

where new poles are placed. If the 

utility can demonstrate that the 

incumbent LEC receives significant 

material benefits beyond basic pole 

attachment or other rights given to 

another telecommunications attacher, 

then we leave it to the parties to 

negotiate the appropriate rate or 

tradeoffs to account for such additional 

benefits. 

108. If the presumption we adopt 

today is rebutted, the pre-2011 Pole 

Attachment Order telecommunications 

carrier rate is the maximum rate that the 

utility and incumbent LEC may 

negotiate. This conclusion builds on 

and clarifies the Commission’s 

determination in the 2011 Pole 

Attachment Order that the pre-2011 

telecommunications carrier rate should 

serve ‘‘as a reference point in complaint 

proceedings’’ where a joint use 

agreement was found to give net 

advantages to an incumbent LEC as 

compared to other attachers. The 

Commission ‘‘[found] it prudent to 

identify a specific rate to be used as a 

reference point in these circumstances 

because it [would] enable better 

informed pole attachment negotiations 

. . . [and] reduce the number of 

disputes’’ regarding pole attachment 

rates. We reaffirm the conclusion that 

reference to this rate is appropriate 

where incumbent LECs receive net 

material advantages in a pole 

attachment agreement. And because we 

agree with commenters that 

establishment of an upper bound will 

provide further certainty within the pole 

attachment marketplace, and help to 

further limit pole attachment litigation, 

we make this rate a hard cap. In so 

doing, we remove the potential for 

uncertainty caused by considering the 

rate merely as a ‘‘reference point.’’ 

D. Legal Authority 

109. We conclude that we have ample 

authority under Section 224 to take the 

actions above to adopt a new pole 

attachment process, amend our current 

pole attachment process, clarify 

responsibility for pre-existing 

violations, and address outdated rate 

disparities. Section 224 authorizes us to 

prescribe rules ensuring that the rates, 

terms, and conditions of pole 

attachments are just and reasonable. We 

find that the actions we take today to 

speed broadband deployment further 

these statutory goals. While we rely 

solely on Section 224 for legal authority, 

our prioritization of broadband 

deployment throughout today’s Third 

Report and Order finds support in 

Section 706(a) of the 

Telecommunications Act of 1996, which 

exhorts us to ‘‘encourage the 

deployment on a reasonable and timely 

basis of advanced telecommunications 

capability to all Americans’’ by 

‘‘remov[ing] barriers to infrastructure 

investment.’’ While Section 706(a) does 

not provide a grant of regulatory 

authority, we look to it as guidance from 

Congress on how to implement our 

statutorily-assigned duties. 

E. Effective Date of the Commission’s 

Modified Pole Attachment Rules 

110. Several parties have requested 

that the Commission provide a 

transition period in which to implement 

its revised rules governing pole 

attachments. As AT&T notes, this Third 

Report and Order would modify ‘‘the 

Commission’s existing timelines for 

application review, make-ready, and 

self-help and adopt new timelines for 

pre-application surveys, OTMR, and 

post OTMR and self-help inspection and 

repair.’’ The record indicates that in 

some cases, these changes will require 

carriers and industry members to 

modify the automated electronic 

systems they use to track and coordinate 

pole attachment workflow and 

activities. Therefore, we find it 

appropriate to provide a transitional 

period. To avoid confusion and 

facilitate efficient compliance 

preparation, we also wish to make the 

transitional period uniform for all pole 

attachment-related rules. Thus, the pole 

attachment-related portions of this 

Third Report and Order (i.e., Sections 

III.A–E) and the rule amendments 

adopted therein shall become effective 

on the latter of (1) six months after the 

release of this item or (2) 30 days after 

the Commission publishes a notice in 

the Federal Register announcing 

approval by the Office of Management 

and Budget of the rules adopted herein 

containing modified information 

collection requirements. We believe that 

this period will be sufficient, but no 

more than necessary, to allow affected 

industry members to modify their 

systems to account for the rule 

amendments adopted in this Third 

Report and Order. The remainder of this 

Third Report and Order will be effective 

30 days after publication in the Federal 

Register. 

F. Rebuilding and Repairing Broadband 

Infrastructure After Disasters 

111. We will not allow state and local 

laws to stand in the way of post-disaster 

restoration of essential communciations 

networks. In the Further Notice of 

Proposed Rulemaking in this 

proceeding, we sought comment on 

whether there are targeted 

circumstances related to disasters in 

which the Commission should use its 

preemption authority. We find that 

Sections 253 and 332(c)(7) of the Act 

provide authority to preempt state or 

local laws that prohibit or have the 

effect of prohibiting the rebuilding or 

restoration of facilities used to provide 

telecommunications services, and we 

commit to the exercise of that authority 

on a case-by-case basis where needed. 

Sections 253 and 332(c)(7) both provide 

for preemption of state and local laws 

that ‘‘prohibit or have the effect of 

prohibiting’’ the deployment of 

telecommunications services, and we 

conclude that these provisions provide 

authority to preempt state or local legal 

action that effectively prohibit the 

deployment of telecommunications 

services in the wake of a disaster. We 

also find that our authority to interpret 

or act pursuant to Sections 253 and 332 

is not limited to natural disasters, and 

also extends to force majeure events 

generally, including man-made 

disasters. As the Commission has 

previously recognized, certain federal 

regulations may impede restoration 

efforts, and we are working to address 

those too—where it is within our 

authority, we are committed to 

addressing all legal requirements that 

stand in the way of prompt restoration 

of communications infrastructure. 

112. We prefer to exercise our 

authority to address the application of 

Section 253 to preempt state and local 

requirements that inhibit network 

restoration on an expedited adjudicatory 

case-by-case basis, in which we can take 

into account the particularized 

circumstances of the state or local law 

in question and the impact of the 

disaster, and other relevant factors, 

rather than through adoption of a rule. 

113. As the City of New York 

suggests, state and local officials may be 

well positioned to respond to disasters 

and implement disaster response 

protocol and we will be cognizant not 

to exercise our preemption authority in 

a manner that could disrupt these 

efforts. In the wake of Hurricanes 

Harvey, Irma, and Maria, the 

Commission worked closely with state 

and local partners to support restoration 

of communications networks in affected 

areas, and going forward, we reiterate 


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the need for ongoing coordination and 

cooperation between the Commission 

and state and local governments to 

rebuild damaged telecommunications 

infrastructure as quickly as possible. As 

the Public Safety and Homeland 

Security Bureau is responsible for 

coordinating the Commission’s disaster 

response and recovery activities and is 

most closely in contact with state, local, 

and Federal public safety, disaster relief 

and restoration agencies in such 

instances, it should work with the 

Wireline Competition Bureau and 

Wireless Telecommunications Bureau to 

report, and provide assistance to, the 

Commission in its adjudication of such 

matters. 

IV. Final Regulatory Flexibility 

Analysis 

114. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated into 

the April 2017 Notice of Proposed 

Rulemaking, Notice of Inquiry, and 

Request for Comment (Wireline 

Infrastructure Notice) and into the 

November 2017 Report and Order and 

Declaratory Ruling, and Further Notice 

of Proposed Rulemaking (Wireline 

Infrastructure Order) in this wireline 

infrastructure proceeding. The 

Commission sought written public 

comment on the proposals in the 

Wireline Infrastructure Notice and in 

the Wireline Infrastructure Order, 

including comment on the IRFAs. The 

Commission received no comments on 

the IRFAs. Because the Commission 

amends its rules in this Third Report 

and Order, the Commission has 

included this Final Regulatory 

Flexibility Analysis (FRFA). This 

present FRFA conforms to the RFA. 

A. Need for, and Objectives of, the Rules 

115. In the Wireline Infrastructure 

Notice, the Commission continued its 

efforts to close the digital divide by 

removing barriers to broadband 

infrastructure investment. To this end, 

the Commission proposed numerous 

regulatory reforms to existing rules and 

procedures regarding pole attachments. 

116. On November 16, 2017, the 

Commission adopted the Wireline 

Infrastructure Order, which enacted 

reforms to pole attachment rules that: 

(1) Bar utility pole owners from 

charging for certain capital costs that 

already have been recovered from makeready fees; (2) set a 180-day shot clock 

for resolution of pole access complaints; 

and (3) grant incumbent local exchange 

carriers (LECs) reciprocal access to 

infrastructure controlled by other LECs. 

In the Further Notice of Proposed 

Rulemaking, the Commission sought 

comment on (1) the treatment of 

overlashing by utilities; and (2) what 

actions the Commission can take to 

facilitate the rebuilding and repairing of 

broadband infrastructure after natural 

disasters. 

117. Concurrently, the BDAC, a 

federal advisory committee chartered in 

2017, formed five active working 

groups, as well as an ad hoc committee 

on rates and fees, to address the issues 

raised in the Wireline Infrastructure 

Notice. During five public meetings, the 

BDAC adopted recommendations 

related to competitive access to 

broadband infrastructure. These 

recommendations informed the 

Commission’s policy decisions on pole 

attachment reform. 

118. Pursuant to the objectives set 

forth in the Wireline Infrastructure 

Notice, this Third Report and Order and 

Declaratory Ruling (Order) adopts 

changes to Commission rules regarding 

pole attachments. The Order adopts 

changes to the current pole attachment 

rules that: (1) Allow new attachers to 

perform all work, not reasonably likely 

to cause a service outage or facility 

damage, to prepare poles for new 

wireline attachments (make-ready work) 

in the communications space of a pole; 

(2) adopt a substantially shortened 

timeline for such application review 

and make-ready work (OTMR pole 

attachment timeline); (3) require new 

attachers to use a utility-approved 

contractor if a utility makes available a 

list of qualified contractors authorized 

to perform simple make-ready work in 

the communications space; (4) create a 

more efficient pole attachment timeline 

for complex and work above the 

communications space (and for new 

attachers that chose the non-OTMR 

timeline for simple work); (5) enhance 

the new attacher’s existing self-help 

remedy for surveys and make-ready 

work by extending it to all attachments 

(both wireless and wireline) above the 

communications space of a pole; (6) 

require new attachers to use utilityapproved contractors when utilities and 

existing attachers miss their deadlines 

and the new attacher elects self-help to 

complete surveys and make-ready work 

that is complex or that involves work 

above the communications space on a 

pole; (7) require utilities to provide new 

attachers with detailed, itemized 

estimates and final invoices for all 

required make-ready work; (8) codify 

the Commission’s existing precedent 

that prohibits a pre-approval 

requirement for overlashing, and adopt 

a rule that allows utilities to establish 

reasonable advance notice requirements 

of up to 15 days for overlashing and 

holds overlashers responsible for 

ensuring that their practices and 

equipment do not cause safety or 

engineering issues; (9) establish a 

rebuttable presumption that, for newlynegotiated and newly-renewed pole 

attachment agreements between LECs 

and utilities, incumbent LECs will 

receive comparable pole attachment 

rates, terms, and conditions as similarlysituated telecommunications carriers or 

cable television system providing 

telecommunications services; and (10) 

establish that new attachers are not 

responsible for costs associated with 

bringing poles or third-party equipment 

into compliance with current safety and 

pole owner construction standards to 

the extent that such poles or third-party 

equipment were out of compliance prior 

to the new attachment. The 

modifications to our pole attachment 

rules will facilitate deployment to and 

reduce barriers to access infrastructure 

by reducing costs and delays typically 

associated with the pole attachment 

process. Ultimately, these pole 

attachment reforms will contribute to 

increased broadband deployment, 

decreased costs for consumers, and 

increased service speeds. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFAs 

119. The Commission did not receive 

comments addressing the rules and 

policies proposed in the IRFAs in either 

the Wireline Infrastructure Notice or the 

Wireline Infrastructure Order. 

C. Response to Comments by the Chief 

Counsel for Advocacy of the SBA 

120. The Chief Counsel did not file 

any comments in response to this 

proceeding. 

D. Description and Estimate of the 

Number of Small Entities To Which the 

Rules Will Apply 

121. The RFA directs agencies to 

provide a description and, where 

feasible, an estimate of the number of 

small entities that may be affected by 

the final rules adopted pursuant to the 

Order. The RFA generally defines the 

term ‘‘small entity’’ as having the same 

meaning as the terms ‘‘small business,’’ 

‘‘small organization,’’ and ‘‘small 

governmental jurisdiction.’’ In addition, 

the term ‘‘small business’’ has the same 

meaning as the term ‘‘small-business 

concern’’ under the Small Business Act. 

A ‘‘small-business concern’’ is one 

which: (1) Is independently owned and 

operated; (2) is not dominant in its field 

of operation; and (3) satisfies any 

additional criteria established by the 

SBA. 


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122. The changes to our pole 

attachment rules affect obligations on 

utilities that own poles and 

telecommunications carriers and cable 

television systems that seek to attach 

equipment to utility poles. 

123. Small Businesses, Small 

Organizations, Small Governmental 

Jurisdictions. Our actions, over time, 

may affect small entities that are not 

easily categorized at present. We 

therefore describe here, at the outset, 

three comprehensive small entity size 

standards that could be directly affected 

herein. First, while there are industry 

specific size standards for small 

businesses that are used in the 

regulatory flexibility analysis, according 

to data from the SBA’s Office of 

Advocacy, in general a small business is 

an independent business having fewer 

than 500 employees. These types of 

small businesses represent 99.9% of all 

businesses in the United States which 

translates to 29.6 million businesses. 

124. Next, the type of small entity 

described as a ‘‘small organization’’ is 

generally ‘‘any not-for-profit enterprise 

which is independently owned and 

operated and is not dominant in its 

field.’’ Nationwide, as of August 2016, 

there were approximately 356,494 small 

organizations based on registration and 

tax data filed by nonprofits with the 

Internal Revenue Service (IRS). 

125. Finally, the small entity 

described as a ‘‘small governmental 

jurisdiction’’ is defined generally as 

‘‘governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than fifty thousand.’’ U.S. Census 

Bureau data from the 2012 Census of 

Governments indicate that there were 

90,056 local governmental jurisdictions 

consisting of general purpose 

governments and special purpose 

governments in the United States. Of 

this number there were 37,132 general 

purpose governments (county, 

municipal, and town or township) with 

populations of less than 50,000 and 

12,184 special purpose governments 

(independent school districts and 

special districts) with populations of 

less than 50,000. The 2012 U.S. Census 

Bureau data for most types of 

governments in the local government 

category show that the majority of these 

governments have populations of less 

than 50,000. Based on this data we 

estimate that at least 49,316 local 

government jurisdictions fall in the 

category of ‘‘small governmental 

jurisdictions.’’ 

126. Wired Telecommunications 

Carriers. The U.S. Census Bureau 

defines this industry as ‘‘establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired communications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services, wired 

(cable) audio and video programming 

distribution, and wired broadband 

internet services. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.’’ 

The SBA has developed a small 

business size standard for Wired 

Telecommunications Carriers, which 

consists of all such companies having 

1,500 or fewer employees. Census data 

for 2012 show that there were 3,117 

firms that operated that year. Of this 

total, 3,083 operated with fewer than 

1,000 employees. Thus, under this size 

standard, the majority of firms in this 

industry can be considered small. 

127. Local Exchange Carriers (LECs). 

Neither the Commission nor the SBA 

has developed a size standard for small 

businesses applicable to local exchange 

services. The closest applicable NAICS 

Code category is for Wired 

Telecommunications Carriers, as 

defined in paragraph 14 of this FRFA. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. Census data for 2012 show 

that there were 3,117 firms that operated 

that year. Of this total, 3,083 operated 

with fewer than 1,000 employees. The 

Commission therefore estimates that 

most providers of local exchange carrier 

service are small entities that may be 

affected by the rules adopted. 

128. Incumbent Local Exchange 

Carriers (incumbent LECs). Neither the 

Commission nor the SBA has developed 

a small business size standard for 

incumbent local exchange services. The 

closest applicable NAICS Code category 

is Wired Telecommunications Carriers 

as defined in paragraph 14 of this FRFA. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. According to Commission 

data, 3,117 firms operated in that year. 

Of this total, 3,083 operated with fewer 

than 1,000 employees. Consequently, 

the Commission estimates that most 

providers of incumbent local exchange 

service are small businesses that may be 

affected by the rules and policies 

adopted. One thousand three hundred 

and seven (1,307) Incumbent Local 

Exchange Carriers reported that they 

were incumbent local exchange service 

providers. Of this total, an estimated 

1,006 have 1,500 or fewer employees. 

129. Competitive Local Exchange 

Carriers (competitive LECs), Competitive 

Access Providers (CAPs), Shared-Tenant 

Service Providers, and Other Local 

Service Providers. Neither the 

Commission nor the SBA has developed 

a small business size standard for these 

service providers. The appropriate 

NAICS Code category is Wired 

Telecommunications Carriers, as 

defined in paragraph 14 of this FRFA. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. U.S. Census data for 2012 

indicate that 3,117 firms operated 

during that year. Of that number, 3,083 

operated with fewer than 1,000 

employees. Based on this data, the 

Commission concludes that the majority 

of Competitive LECs, CAPs, SharedTenant Service Providers, and Other 

Local Service Providers are small 

entities. According to Commission data, 

1,442 carriers reported that they were 

engaged in the provision of either 

competitive local exchange services or 

competitive access provider services. Of 

these 1,442 carriers, an estimated 1,256 

have 1,500 or fewer employees. In 

addition, 17 carriers have reported that 

they are Shared-Tenant Service 

Providers, and all 17 are estimated to 

have 1,500 or fewer employees. In 

addition, 72 carriers have reported that 

they are Other Local Service Providers. 

Of this total, 70 have 1,500 or fewer 

employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

Shared-Tenant Service Providers, and 

Other Local Service Providers are small 

entities that may be affected by the 

adopted rules. 

130. Interexchange Carriers (IXCs). 

Neither the Commission nor the SBA 

has developed a definition for 

Interexchange Carriers. The closest 

NAICS Code category is Wired 

Telecommunications Carriers as defined 

in paragraph 14 of this FRFA. The 

applicable size standard under SBA 

rules is that such a business is small if 

it has 1,500 or fewer employees. 

According to Commission data, 359 

companies reported that their primary 

telecommunications service activity was 

the provision of interexchange services. 

Of this total, an estimated 317 have 

1,500 or fewer employees and 42 have 

more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of 

interexchange service providers are 


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small entities that may be affected by 

the adopted rules. 

131. Other Toll Carriers. Neither the 

Commission nor the SBA has developed 

a size standard for small businesses 

applicable to Other Toll Carriers. This 

category includes toll carriers that do 

not fall within the categories of 

interexchange carriers, operator service 

providers, prepaid calling card 

providers, satellite service carriers, or 

toll resellers. The closest applicable 

NAICS Code category is for Wired 

Telecommunications Carriers, as 

defined in paragraph 14 of this FRFA. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. Census data for 2012 shows 

that there were 3,117 firms that operated 

that year. Of this total, 3,083 operated 

with fewer than 1,000 employees. Thus, 

under this category and the associated 

small business size standard, the 

majority of Other Toll Carriers can be 

considered small. According to 

Commission data, 284 companies 

reported that their primary 

telecommunications service activity was 

the provision of other toll carriage. Of 

these, an estimated 279 have 1,500 or 

fewer employees. Consequently, the 

Commission estimates that most Other 

Toll Carriers that may be affected by our 

rules are small. 

132. Wireless Telecommunications 

Carriers (Except Satellite). This industry 

comprises establishments engaged in 

operating and maintaining switching 

and transmission facilities to provide 

communications via the airwaves, such 

as cellular services, paging services, 

wireless internet access, and wireless 

video services. The appropriate size 

standard under SBA rules is that such 

a business is small if it has 1,500 or 

fewer employees. For this industry, 

Census data for 2012 show that there 

were 967 firms that operated for the 

entire year. Of this total, 955 firms had 

fewer than 1,000 employees. Thus, 

under this category and the associated 

size standard, the Commission estimates 

that the majority of wireless 

telecommunications carriers (except 

satellite) are small entities. Similarly, 

according to internally developed 

Commission data, 413 carriers reported 

that they were engaged in the provision 

of wireless telephony, including cellular 

service, Personal Communications 

Service (PCS), and Specialized Mobile 

Radio (SMR) services. Of this total, an 

estimated 261 have 1,500 or fewer 

employees. Consequently, the 

Commission estimates that 

approximately half of these firms can be 

considered small. Thus, using available 

data, we estimate that the majority of 

wireless firms can be considered small. 

133. Cable Companies and Systems 

(Rate Regulation). The Commission has 

developed its own small business size 

standards for the purpose of cable rate 

regulation. Under the Commission’s 

rules, a ‘‘small cable company’’ is one 

serving 400,000 or fewer subscribers 

nationwide. Industry data indicate that 

there are currently 4,600 active cable 

systems in the United States. Of this 

total, all but nine cable operators 

nationwide are small under the 400,000- 

subscriber size standard. In addition, 

under the Commission’s rate regulation 

rules, a ‘‘small system’’ is a cable system 

serving 15,000 or fewer subscribers. 

Current Commission records show 4,600 

cable systems nationwide. Of this total, 

3,900 cable systems have fewer than 

15,000 subscribers, and 700 systems 

have 15,000 or more subscribers, based 

on the same records. Thus, under this 

standard as well, we estimate that most 

cable systems are small entities. 

134. Cable System Operators 

(Telecom Act Standard). The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, which 

is ‘‘a cable operator that, directly or 

through an affiliate, serves in the 

aggregate fewer than one percent of all 

subscribers in the United States and is 

not affiliated with any entity or entities 

whose gross annual revenues in the 

aggregate exceed $250,000,000 are 

approximately 52,403,705 cable video 

subscribers in the United States today. 

Accordingly, an operator serving fewer 

than 524,037 subscribers shall be 

deemed a small operator if its annual 

revenues, when combined with the total 

annual revenues of all its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, we 

find that all but nine incumbent cable 

operators are small entities under this 

size standard. We clarify that the 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million. Although it seems 

certain that some of these cable system 

operators are affiliated with entities 

whose gross annual revenues exceed 

$250,000,000, we are unable at this time 

to estimate with greater precision the 

number of cable system operators that 

would qualify as small cable operators 

under the definition in the 

Communications Act. 

135. All Other Telecommunications. 

‘‘All Other Telecommunications’’ is 

defined as follows: ‘‘This U.S. industry 

is comprised of establishments that are 

primarily engaged in providing 

specialized telecommunications 

services, such as satellite tracking, 

communications telemetry, and radar 

station operation. This industry also 

includes establishments primarily 

engaged in providing satellite terminal 

stations and associated facilities 

connected with one or more terrestrial 

systems and capable of transmitting 

telecommunications to, and receiving 

telecommunications from, satellite 

systems. Establishments providing 

internet services or voice over internet 

protocol (VoIP) services via client 

supplied telecommunications 

connections are also included in this 

industry.’’ The SBA has developed a 

small business size standard for ‘‘All 

Other Telecommunications,’’ which 

consists of all such firms with gross 

annual receipts of $32.5 million or less. 

For this category, Census Bureau data 

for 2012 show that there were 1,442 

firms that operated for the entire year. 

Of those firms, a total of 1,400 had 

annual receipts less than $25 million. 

Consequently, we conclude that the 

majority of All Other 

Telecommunications firms can be 

considered small. 

136. Electric Power Generation, 

Transmission and Distribution. The 

Census Bureau defines this category as 

follows: ‘‘This industry group comprises 

establishments primarily engaged in 

generating, transmitting, and/or 

distributing electric power. 

Establishments in this industry group 

may perform one or more of the 

following activities: (1) Operate 

generation facilities that produce 

electric energy; (2) operate transmission 

systems that convey the electricity from 

the generation facility to the distribution 

system; and (3) operate distribution 

systems that convey electric power 

received from the generation facility or 

the transmission system to the final 

consumer.’’ This category includes 

electric power distribution, 

hydroelectric power generation, fossil 

fuel power generation, nuclear electric 

power generation, solar power 

generation, and wind power generation. 

The SBA has developed a small 

business size standard for firms in this 

category based on the number of 

employees working in a given business. 

According to Census Bureau data for 

2012, there were 1,742 firms in this 

category that operated for the entire 

year. 

137. Natural Gas Distribution. This 

economic census category comprises: 

‘‘(1) establishments primarily engaged 

in operating gas distribution systems 

(e.g., mains, meters); (2) establishments 

known as gas marketers that buy gas 

from the well and sell it to a distribution 

system; (3) establishments known as gas 

brokers or agents that arrange the sale of 


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gas over gas distribution systems 

operated by others; and (4) 

establishments primarily engaged in 

transmitting and distributing gas to final 

consumers.’’ The SBA has developed a 

small business size standard for this 

industry, which is all such firms having 

1,000 or fewer employees. According to 

Census Bureau data for 2012, there were 

422 firms in this category that operated 

for the entire year. Of this total, 399 

firms had employment of fewer than 

1,000 employees, 23 firms had 

employment of 1,000 employees or 

more, and 37 firms were not 

operational. Thus, the majority of firms 

in this category can be considered small. 

138. Water Supply and Irrigation 

Systems. This economic census category 

‘‘comprises establishments primarily 

engaged in operating water treatment 

plants and/or operating water supply 

systems. The water supply system may 

include pumping stations, aqueducts, 

and/or distribution mains. The water 

may be used for drinking, irrigation, or 

other uses.’’ The SBA has developed a 

small business size standard for this 

industry, which is all such firms having 

$27.5 million or less in annual receipts. 

According to Census Bureau data for 

2012, there were 3,261 firms in this 

category that operated for the entire 

year. Of this total, 3,035 firms had 

annual sales of less than $25 million. 

Thus, the majority of firms in this 

category can be considered small. 

E. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

139. OTMR Alternative Pole 

Attachment Process. The Order adopts 

an OTMR pole attachment alternative to 

the Commission’s existing pole 

attachment timeline. New attachers may 

perform all simple make-ready work 

required to accommodate new wireline 

attachments in the communications 

space on a pole. First, any OTMR work 

will be performed by a utility-approved 

contractor, although a new attacher can 

use its own qualified contractor to 

perform OTMR work when the utility 

does not provide a list of approved 

contractors. Second, new attachers must 

provide advanced notice and allow 

representatives of existing attachers and 

the utility a reasonable opportunity to 

be present when OTMR surveys and 

make-ready work are performed. Third, 

new attachers must allow existing 

attachers and the utility the ability to 

inspect and request any corrective 

measures soon after the new attacher 

performs the OTMR work. 

140. The Order sets forth that the 

OTMR process begins upon utility 

receipt of a complete application by a 

new attacher to attach to its facilities. A 

complete application is defined as one 

that provides the utility with the 

information necessary under its 

procedures, as specified in a master 

service agreement or in publiclyreleased requirements at the time of 

submission of the application, to begin 

to survey the affected poles. The Order 

further establishes that a utility has ten 

business days after receipt of a pole 

attachment application to determine if 

the application is complete and notify 

the attacher of that decision. If the 

utility notifies the attacher that its 

application is not complete within the 

ten business-day review period, then the 

utility must specify where and how the 

application is deficient. If the utility 

provides no response within ten 

business days, or if the utility rejects the 

application as incomplete but fails to 

specify any deficiencies in the 

application, then the application is 

deemed complete. If the utility timely 

notifies the attacher that its application 

is incomplete and specifies the 

deficiencies, then a resubmitted 

application need only supplement the 

previous application by addressing the 

issues identified by the utility, and the 

application will be deemed complete 

within five business days after its 

resubmission, unless the utility 

specifies which deficiencies were not 

addressed. A new attacher may follow 

the resubmission procedure as many 

times as it chooses, so long as in each 

case it makes a bona fide attempt to 

correct the issues identified by the 

utility. A utility must respond to new 

attachers within 15 days of receiving 

complete pole attachment application, 

or within 30 days for larger requests. 

141. The Order provides that under 

the OTMR process, it is the 

responsibility of the new attacher to 

conduct a survey of the affected poles to 

determine the make-ready work to be 

performed. In performing a field 

inspection as part of any preconstruction survey, the new attacher 

must permit representatives of the 

utility and any existing attachers 

potentially affected by the proposed 

make-ready work to be present for the 

survey, using commercially reasonable 

efforts to provide advance notice of the 

date, time, and location of the survey of 

not less than three (3) business days. 

142. The Order requires that the new 

attacher ensures that its contractor 

determines whether the make-ready 

work identified in the survey is simple 

or complex, subject to an electric 

utility’s right to reasonably object to the 

determination. The new attacher—if it 

wants to use the OTMR process and is 

eligible to do so based on the survey— 

must elect OTMR in its pole attachment 

application and identify in its 

application the simple make-ready work 

to be performed. The Order requires a 

utility that wishes to object to a simple 

make-ready determination to raise such 

an objection during the 15-day 

application review period (or within 30 

days in the case of larger orders). Any 

such objection by the utility is final and 

determinative, so long as it is specific 

and in writing, includes all relevant 

evidence and information supporting its 

decision, provides a good faith 

explanation of how such evidence and 

information relate to a determination 

that the make-ready is not simple. In 

this case, the work is deemed complex 

and must follow the existing pole 

attachment timeline that is modified in 

this Order. If the make-ready work 

involves a mix of simple and complex 

work, then the new attacher may elect 

to bifurcate the work and must submit 

separate applications for simple and 

complex work. 

143. The Order provides that the new 

attacher can elect to proceed with the 

necessary simple make-ready work by 

giving 15 days prior written notice to 

the utility and all affected existing 

attachers. The new attacher may provide 

the required 15-day notice any time 

after the utility deems its pole 

attachment application complete. If the 

new attacher cannot start make-ready 

work on the date specified in its 15-day 

notice, then the new attacher must 

provide 15 days advance notice of its 

revised make-ready date. The new 

attacher’s notice must provide 

representatives of the utility and 

existing attachers: (1) The date and time 

of the make-ready work, (2) a 

description of the make-ready work 

involved, (3) a reasonable opportunity 

to be present when the make-ready work 

is being performed, and (4) the name of 

the contractor chosen by the new 

attacher to perform the make-ready 

work. Further, the new attacher must 

notify the existing attacher immediately 

if the new attacher’s contractor damages 

another company’s or the utility’s 

equipment or causes an outage that is 

reasonably likely to interrupt the 

provision of service. 

144. Finally, the Order requires the 

new attacher to provide notice to the 

utility and affected existing attachers 

within 15 days after OTMR make-ready 

work is completed on a particular pole. 

In its post-make-ready notice, the new 

attacher must provide the utility and 

existing attachers at least a 90-day 

period for the inspection of make-ready 

work performed by the new attacher’s 

contractors. The Order requires the 

utility and the existing attachers to 


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notify the new attacher of any damage 

or any code violations caused to their 

equipment by the new attacher’s makeready work and provide adequate 

documentation of the damage or 

violations within 14 days after any postmake ready inspection. The utility or 

existing attacher can either complete 

any necessary remedial work and bill 

the new attacher for reasonable costs to 

fix the damage or violations, or require 

the new attacher to fix the damage at its 

expense within 14 days following notice 

from the utility or existing attacher. 

145. The Order also establishes that 

new attachers must use a utilityapproved contractor to perform OTMR if 

a utility makes available a list of 

qualified contractors authorized to 

perform simple make-ready work in the 

communications space of its poles. New 

and existing attachers may request that 

contractors meeting the minimum 

qualification requirements be added to 

the utility’s list and utilities may not 

unreasonably withhold consent to add a 

new contractor to the list. To be 

reasonable, a utility’s decision to 

withhold consent must be prompt, set 

forth in writing that describes the basis 

for rejection, nondiscriminatory, and 

based on fair application of 

commercially reasonable requirements 

for contractors relating to issues of 

safety or reliability. If the use of an 

approved contractor is not required by 

the utility or no approved contractor is 

available within a reasonable time 

period, then the Order allows new 

attachers to use qualified contractors of 

their choosing to perform simple makeready work in the communications 

space of poles. The utility may mandate 

additional commercially reasonable 

requirements for contractors relating to 

issues of safety and reliability, but such 

requirements must clearly communicate 

the safety or reliability issue, be nondiscriminatory, in writing, and publicly 

available. New attachers must provide 

the name of their chosen contractor in 

the three-business-day advance notice 

for surveys or the 15-day notices sent to 

utilities and existing attachers in 

advance of commencing OTMR work. 

The utility may veto any contractor 

chosen by the new attacher as long as 

the veto is based on reasonable safety or 

reliability concerns related to the 

contractor’s ability to meet one or more 

of the minimum qualifications or the 

utility’s previously posted safety 

standards, and the utility identifies at 

least one qualified contractor available 

to do the work. When vetoing an 

attacher’s chosen contractor, the utility 

must identify at least one qualified 

contractor available to do the work. The 

utility must exercise its veto within 

either the three-business-day notice 

period for surveys or the 15-day notice 

period for make-ready. The objection by 

the utility is determinative and final. 

146. The utility or new attacher must 

certify to the utility, within either the 

three-business-day notice period for 

surveys or the 15-day notice period for 

make-ready, that any contractors 

perform OTMR meet the following 

minimum requirements: (1) Follow 

published safety and operational 

guidelines of the utility, if available, but 

if unavailable, the contractor agrees to 

follow NESC guidelines; (2) read and 

follow licensed-engineered pole designs 

for make-ready work, if required by the 

utility; (3) follow all local, state, and 

federal laws and regulations including, 

but not limited to, the rules regarding 

Qualified and Competent Persons under 

the requirements of the Occupational 

and Safety Health Administration 

(OSHA) rules; (4) meet or exceed any 

uniformly applied and reasonable safety 

record thresholds set by the utility, if 

made available, i.e., the contractor does 

not have an unsafe record of significant 

safety violations or worksite accidents; 

and (5) be adequately insured or be able 

to establish an adequate performance 

bond for the make-ready work it will 

perform, including work it will perform 

on facilities owned by existing 

attachers. The utility may mandate 

additional commercially reasonable 

requirements for contractors relating to 

issues of safety and reliability, but such 

requirements must be nondiscriminatory, in writing, and publiclyavailable (i.e., on the utility’s website). 

147. Existing Pole Attachment Process 

Reforms. The Order makes targeted 

changes to the Commission’s existing 

pole attachment timeline for 

attachments that are not eligible for the 

OTMR process and attachers that prefer 

the existing process. These reforms 

include revising the definition of a 

complete pole attachment application 

and establishing a timeline for a utility’s 

determination whether application is 

complete; requiring utilities to provide 

at least three business days’ advance 

notice of any surveys to the new 

attacher; establishing a 30-day deadline 

for all make-ready work in the 

communications space; streamlining the 

utility’s notice requirements; 

eliminating the 15-day utility makeready period for communications space 

attachments; streamlining the utility’s 

notice requirements; requiring utilities 

to provide detailed estimates and final 

invoices to new attachers regarding 

make-ready costs; enhancing the new 

attacher’s self-help remedy by making 

the remedy available for surveys and 

make-ready work for all attachments 

anywhere on the pole in the event that 

the utility or the existing attachers fail 

to meet the required deadlines; and 

revising the contractor selection process 

for a new attacher’s self-help work. 

148. The Order retains the existing 

requirement that the pole attachment 

timeline begins upon utility receipt of a 

complete application to attach facilities 

to its poles, but revises the definition of 

a complete application to an application 

that provides the utility with the 

information necessary under its 

procedures, as specified in a master 

service agreement or in publiclyreleased requirements at the time of 

submission, to begin to survey the 

affected poles. The Order then adopts 

the same timeline as set out in the 

OTMR-process for a utility to determine 

whether a pole attachment application 

is complete. 

149. The Order also requires a utility 

to permit the new attacher and any 

existing attachers potentially affected by 

the new attachment to be present for 

any pole surveys. The utility must use 

commercially reasonable efforts to 

provide at least three business days’ 

advance notice of any surveys to the 

new attacher and each existing attacher, 

including the date, time, location of the 

survey, and the name of the contractor 

performing the survey. The Order 

provides that the utility may meet the 

survey requirement of our existing 

timeline by electing to use surveys 

previously prepared on the poles in 

question by new attachers. 

150. The Order amends the existing 

make-ready timeline by (1) reducing the 

deadlines for both simple and complex 

make-ready work from 60 to 30 days 

(and from 105 to 75 for large requests in 

the communications space); and (2) 

eliminating the optional 15-day 

extension for the utility to complete 

communications space make-ready 

work. The Order maintains the current 

make-ready deadline of 90 days (and 

135 days for large requests) for makeready above the communications space. 

However, for all attachments, the Order 

retains as a safeguard our existing rule 

allowing utilities to deviate from the 

make-ready timelines for good and 

sufficient cause when it is infeasible for 

the utility to complete make-ready work 

within the prescribed timeframe. 

Further, an existing attacher may 

deviate from the 30-day deadline for 

complex make-ready in the 

communications space (or the 75-day 

deadline in the case of larger orders) for 

reasons of safety or service interruption 

that renders it infeasible for the existing 

attacher to complete complex makeready by the deadline. An existing 


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attacher that so deviates must 

immediately notify, in writing, the new 

attacher and other affected existing 

attachers, identify the affected poles, 

and include a detailed explanation of 

the basis for the deviation and a new 

completion date, which cannot extend 

beyond 60 days from the date of the 

utility make-ready notice to existing 

attachers (or 105 days in the case of 

larger orders). The existing attacher 

cannot deviate from the complex makeready time limits for a period longer 

than necessary to complete make-ready 

on the affected poles. If complex makeready is not complete within 60 days 

from the date that the existing attacher 

sends notice to the new attacher, the 

new attacher can complete the work 

using a utility-approved contractor. 

Existing attachers must act in good faith 

in obtaining an extension. The Order 

also provides that when a utility 

provides the required make-ready notice 

to existing attachers, then it must 

provide the new attacher with a copy of 

the notice, plus the contact information 

of existing attachers to which the 

notices were sent, and thereafter the 

new attacher (rather than the utility) 

must take responsibility for encouraging 

and coordinating with existing attachers 

to ensure completion of make-ready 

work on a timely basis. 

151. Expanding upon the 

Commission’s existing make-ready cost 

estimate requirement for utilities, the 

Order requires a utility to detail all 

make-ready cost estimates and final 

invoices on a per-pole basis where 

requested by the new attacher. Fixed 

costs that are not necessarily charged on 

a per-pole basis may be submitted on a 

per-job basis, rather than a pole-by-pole 

basis, even where a pole-by-pole 

estimate or invoice is requested. As part 

of the detailed estimate, the utility is 

required to disclose to the new attacher 

its projected material, labor, and other 

related costs that form the basis of its 

estimate, including specifying what, if 

any costs, the utility is passing through 

to the new attacher from the utility’s use 

of a third-party contractor. The utility 

must also provide documentation that is 

sufficient to determine the basis of all 

charges in the final invoice, including 

any material, labor and other related 

costs. If a utility completes make-ready 

and the final cost of the work does not 

differ from the estimate, it is not 

required to provide the new attacher 

with the invoice. 

152. To increase broadband 

deployment, the Order modifies our 

existing pole attachment rules by 

extending a new attacher’s self-help 

remedy for surveys and make-ready 

work to all attachments above the 

communications space, including the 

installation of wireless 5G small cells, 

when the utility or existing attachers 

have not met make-ready work 

deadlines. To address the safety 

concerns of utilities with regard to selfhelp work, the Order requires that new 

attachers, when invoking the self-help 

remedy, (1) use a utility-approved 

contractor to do the make-ready work; 

(2) provide no less than three business 

days advance notice for self-help 

surveys and five business days advance 

notice of when self-help make-ready 

work will be performed and a 

reasonable opportunity to be present; (3) 

provide notice to the utility and existing 

attachers no later than 15 days after 

make-ready is complete on a particular 

pole so that they have an opportunity to 

inspect the make-ready work. The 

advance notice must include the date 

and time of the work, nature of the 

work, and the name of the contractor 

being used by the new attacher. The 

new attacher is required to provide 

immediate notice to the affected utility 

and existing attachers if the new 

attacher’s contractor damages 

equipment or causes an outage that is 

reasonably likely to interrupt the 

provision of service. 

153. The Order adopts a contractor 

selection process for self-help that 

requires a new attacher electing selfhelp for simple work in the 

communications space to select a 

contractor from a utility-maintained list 

of qualified contractors that meet the 

same safety and reliability criteria as 

contractors authorized to perform 

OTMR work, where such a list is 

available. New and existing attachers 

may request the addition to the list of 

any contractor that meets the minimum 

qualification requirements and the 

utility may not unreasonably withhold 

consent. If no list is available or no 

approved contractor is available within 

a reasonable time period, the new 

attacher must select a contractor that 

meets the same safety and reliability 

criteria as contractors authorized to 

perform OTMR work and any additional 

non-discriminatory, written, and 

publicly-available criteria relating to 

safety and reliability that the utility 

specifies. The utility may veto the new 

attacher’s contractor selection so long as 

such veto is prompt, set forth in writing 

that describes the reasonable basis for 

rejection, nondiscriminatory, and based 

on fair application of commercially 

reasonable requirements for contractors 

relating to issues of safety and 

reliability. Additionally, the utility must 

offer another available, qualified 

contractor. For complex work and work 

above the communications space, the 

Order requires (1) the utility to make 

available and keep up-to-date 

reasonably sufficient list of contractors 

it authorizes to perform complex and 

non-communications space self-help 

surveys and make-ready work; and (2) 

the new attacher to choose a contractor 

from the utility’s list. New and existing 

attachers may request that qualified 

contractors be added to the utility’s list 

and that the utility may not 

unreasonably withhold its consent for 

such additions. A utility’s decision to 

withhold consent must be prompt, set 

forth in writing that describes the 

reasonable basis for the rejection, 

nondiscriminatory, and based on fair 

application of commercially reasonable 

requirements for contractors relating to 

issues of safety. 

154. Additional Pole Attachment 

Reforms. The Order codifies the 

Commission’s existing precedent that 

prohibits a pre-approval requirement for 

overlashing. In addition, the Order 

adopts a rule on overlashing that allows 

utilities to establish a reasonable 15-day 

advance notice requirement, and holds 

overlashers responsible for ensuring that 

their practices and equipment do not 

cause safety or engineering issues. If 

after receiving advance notice, a utility 

determines that an overlash create a 

capacity, safety, reliability, or 

engineering issue, it must provide 

specific documentation of the issue to 

the party seeking to overlash within the 

15 day advance notice period and the 

party seeking to overlash must address 

any identified issues before continuing 

with the overlash either by modifying 

its proposal or by explaining why, in the 

party’s view, a modification is 

unnecessary. The Order also provides 

that a utility may not charge a fee to the 

party seeking to overlash for the utility’s 

review of the proposed overlash. The 

Order also includes a post-overlashing 

review process where an overlashing 

party is required to notify the affected 

utility within 15 days of completion of 

the overlash on a particular pole. The 

notice must provide the affected utility 

90 days from receipt in which to inspect 

the overlash. The utility has 14 days 

after completion of its inspection to 

notify the overlashing party of any 

damage to its equipment caused by the 

overlash. It the utility discovers damage 

caused by the overlash on equipment 

belonging to the utility, then the utility 

must inform the overlashing party and 

provide adequate documentation of the 

damage. The Order sets forth that the 

utility may either (A) complete any 

necessary remedial work and bill the 

overlashing party for the reasonable 


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costs related to fixing the damage, or (B) 

require the overlashing party to fix the 

damage at its expense within 14 days 

following notice from the utility. 

155. The Order provides that a utility 

may not prevent an attacher from 

overlashing because another attacher 

has not fixed a preexisting violation or 

require an existing attacher that 

overlashes its existing wires on a pole 

to fix preexisting violations caused by 

another existing attacher. The Order sets 

forth that new attachers are not 

responsible for the costs associated with 

bringing poles or third-party equipment 

into compliance with current safety and 

pole owner construction standards to 

the extent such poles or third-party 

equipment were out of compliance prior 

to the new attachment. Further, utilities 

may not deny new attachers access to 

the pole solely based on safety concerns 

arising from a pre-existing violation. 

They also cannot delay completion of 

make-ready while the utility attempts to 

identify or collect from the party who 

should pay for correction of the 

preexisting violation. The Order also 

establishes a presumption that, for 

newly-negotiated and newly renewed 

pole attachment agreements between 

incumbent LECs and utilities, an 

incumbent LEC will receive comparable 

pole attachment rates, terms, and 

conditions as a similarly-situated 

telecommunications carrier or 

telecommunications attacher, unless the 

utility can rebut the presumption with 

clear and convincing evidence that the 

incumbent LEC receives net benefits 

under its pole attachment agreement 

with the utility, that materially 

advantage the incumbent LEC over other 

telecommunications attachers. If the 

presumption is rebutted, the pre-2011 

Pole Attachment Order 

telecommunications carrier rate is the 

maximum rate that the utility and 

incumbent LEC may negotiate. 

F. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

156. In this Order, the Commission 

modifies its pole attachment rules to 

improve the efficiency and transparency 

of the pole attachment process, as well 

as to increase access to infrastructure for 

certain types of broadband providers. 

Overall, we believe the actions in this 

document will reduce burdens on the 

affected carriers, including any small 

entities. 

157. The Order also finds that 

adopting the OTMR process will reduce 

delays and costs for new attachers, 

enhance competition, improve public 

safety and reliability of networks, and 

accelerate broadband buildout. As 

detailed in the Order, the Commission 

rejects alternative proposals, such as 

‘‘right-touch, make-ready’’ and NCTA’s 

‘‘ASAP’’ proposal—which merely 

modify the current framework. These 

approaches diffuse responsibility among 

parties that lack the new attacher’s 

incentive to ensure that the work is 

done quickly, cost effectively, and 

properly. Further, these proposals fail to 

address the existing problems created by 

sequential make-ready, such as 

numerous separate climbs and 

construction stoppages in the publicrights-of-way. 

158. As described in the Order, 

applying targeted changes to the 

existing pole attachment process, such 

as a more efficient pole attachment 

timeline, detailed and itemized 

estimates and final invoices on a perpole basis, and an enhanced self-help 

remedy, will increase broadband 

deployment by reducing the number of 

unreasonable delays, and encouraging 

transparency and collaboration between 

all interested parties at an early stage in 

the pole attachment process. The Order 

also concluded that codifying the 

Commission’s existing precedent 

prohibiting a pre-approval requirement 

for overlashing, and adopting a rule 

allowing utilities to require advance 

notice of overlashing will eliminate the 

industry uncertainty that currently 

exists regarding overlashing, a practice 

that is essential to broadband 

deployment. In addition, by eliminating 

outdated disparities between the pole 

attachment rates that incumbent carriers 

must pay compared to other similarlysituated cable and telecommunications 

attachers, the Order sought to increase 

incumbent LEC access to infrastructure 

by addressing the bargaining disparity 

between utilities and incumbent LECs. 

G. Report to Congress 

159. The Commission will send a 

copy of the Order, including this FRFA, 

in a report to be sent to Congress 

pursuant to the Congressional Review 

Act. In addition, the Commission will 

send a copy of the Order, including this 

FRFA, to the Chief Counsel for 

Advocacy of the SBA. A copy of the 

Order and FRFA (or summaries thereof) 

will also be published in the Federal 

Register. 

V. Procedural Matters 

160. Final Regulatory Flexibility 

Analysis. As required by the Regulatory 

Flexibility Act of 1980 (RFA), the 

Commission has prepared a Final 

Regulatory Flexibility Analysis (FRFA) 

relating to this Third Report and Order. 

The FRFA is contained in Section IV 

above. 

161. Paperwork Reduction Act. The 

Third Report and Order contains 

modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. It will be submitted to the 

Office of Management and Budget 

(OMB) for review under Section 3507(d) 

of the PRA. OMB, the general public, 

and other federal agencies will be 

invited to comment on the new or 

modified information collection 

requirements contained in this 

proceeding. In addition, pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we seek specific comment on 

how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. 

162. In this document, we have 

assessed the effects of reforming our 

pole attachment regulations and find 

that doing so will serve the public 

interest and is unlikely to directly affect 

businesses with fewer than 25 

employees. 

163. Congressional Review Act. The 

Commission will send a copy of the 

Third Report and Order to Congress and 

the Government Accountability Office 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A). 

VI. Ordering Clauses 

164. Accordingly, it is ordered that, 

pursuant to Sections 1–4, 201, 224, 253, 

303(r), and 332 of the Communications 

Act of 1934, as amended, 47 U.S.C. 151– 

154, 201, 224, 253, 303(r), and 332, and 

Section 5(e) of the Administrative 

Procedure Act, 5 U.S.C. 554(e), this 

Third Report and Order and Declaratory 

Ruling is adopted. 

165. It is further ordered that Part 1 

of the Commission’s rules is amended as 

set forth below. 

166. It is further ordered that this 

Third Report and Order shall be 

effective 30 days after publication in the 

Federal Register, except for Sections 

III.A–E of this Third Report and Order, 

which will be effective on the latter of 

six months after release of this Third 

Report and Order or 30 days after the 

announcement in the Federal Register 

of Office of Management and Budget 

(OMB) approval of information 

collection requirements modified in this 

Third Report and Order. OMB approval 

is necessary for the information 

collection requirements in 47 CFR 

1.1411(c)(1) and (3), (d) introductory 

text and (d)(3), (e)(3), (h)(2) and (3), 

(i)(1) and (2), (j)(1) through (5), 1.1412(a) 

and (b), 1.1413(b), and 1.1415(b). 


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167. It is further ordered that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Third Report and Order to Congress 

and the Government Accountability 

Office pursuant to the Congressional 

Review Act, see 5 U.S.C. 801(a)(1)(A). 

List of Subjects in 47 CFR Part 1 

Administrative practice and 

procedure, Communications common 

carriers, Pole attachment complaint 

procedures, Reporting and 

recordkeeping requirements, 

Telecommunications. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

Final Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 1 as 

follows: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 1. The authority for part 1 is revised 

to read as follows: 

Authority: 47 U.S.C. 151, 154(i) and (j), 

155, 157, 160, 201, 224, 225, 227, 303, 309, 

310, 332, 1403, 1404, 1451, 1452, and 1455. 

■ 2. Amend § 1.1402 by adding 

paragraphs (o) through (r) to read as 

follows: 

§ 1.1402 Definitions. 

* * * * * 

(o) The term make-ready means the 

modification or replacement of a utility 

pole, or of the lines or equipment on the 

utility pole, to accommodate additional 

facilities on the utility pole. 

(p) The term complex make-ready 

means transfers and work within the 

communications space that would be 

reasonably likely to cause a service 

outage(s) or facility damage, including 

work such as splicing of any 

communication attachment or 

relocation of existing wireless 

attachments. Any and all wireless 

activities, including those involving 

mobile, fixed, and point-to-point 

wireless communications and wireless 

internet service providers, are to be 

considered complex. 

(q) The term simple make-ready 

means make-ready where existing 

attachments in the communications 

space of a pole could be transferred 

without any reasonable expectation of a 

service outage or facility damage and 

does not require splicing of any existing 

communication attachment or 

relocation of an existing wireless 

attachment. 

(r) The term communications space 

means the lower usable space on a 

utility pole, which typically is reserved 

for low-voltage communications 

equipment. 

■ 3. Amend § 1.1403 by revising 

paragraphs (c) introductory text and 

(c)(3) to read as follows: 

§ 1.1403 Duty to provide access; 

modifications; notice of removal, increase 

or modification; petition for temporary stay; 

and cable operator notice. 

* * * * * 

(c) A utility shall provide a cable 

television system or 

telecommunications carrier no less than 

60 days written notice prior to: 

* * * * * 

(3) Any modification of facilities by 

the utility other than make-ready 

noticed pursuant to § 1.1411(e), routine 

maintenance, or modification in 

response to emergencies. 

* * * * * 

■ 4. Amend § 1.1411 by: 

■ a. Revising paragraphs (a), (c), and (d) 

introductory text and (d)(2); 

■ b. Adding paragraphs (d)(3) and (4); 

■ c. Revising paragraphs (e)(1) and (2); 

■ d. Adding paragraph (e)(3); 

■ e. Revising paragraphs (f), (g)(1), (g)(4) 

and (5), (h), and (i); and 

■ f. Adding paragraph (j). 

The revisions and additions read as 

follows: 

§ 1.1411 Timeline for access to utility 

poles. 

(a) Definitions. 

(1) The term ‘‘attachment’’ means any 

attachment by a cable television system 

or provider of telecommunications 

service to a pole owned or controlled by 

a utility. 

(2) The term ‘‘new attacher’’ means a 

cable television system or 

telecommunications carrier requesting 

to attach new or upgraded facilities to 

a pole owned or controlled by a utility. 

(3) The term ‘‘existing attacher’’ 

means any entity with equipment on a 

utility pole. 

* * * * * 

(c) Application review and survey— 

(1) Application completeness. A utility 

shall review a new attacher’s attachment 

application for completeness before 

reviewing the application on its merits. 

A new attacher’s attachment application 

is considered complete if it provides the 

utility with the information necessary 

under its procedures, as specified in a 

master service agreement or in 

requirements that are available in 

writing publicly at the time of 

submission of the application, to begin 

to survey the affected poles. 

(i) A utility shall determine within 10 

business days after receipt of a new 

attacher’s attachment application 

whether the application is complete and 

notify the attacher of that decision. If 

the utility does not respond within 10 

business days after receipt of the 

application, or if the utility rejects the 

application as incomplete but fails to 

specify any reasons in its response, then 

the application is deemed complete. If 

the utility timely notifies the new 

attacher that its attachment application 

is not complete, then it must specify all 

reasons for finding it incomplete. 

(ii) Any resubmitted application need 

only address the utility’s reasons for 

finding the application incomplete and 

shall be deemed complete within 5 

business days after its resubmission, 

unless the utility specifies to the new 

attacher which reasons were not 

addressed and how the resubmitted 

application did not sufficiently address 

the reasons. The new attacher may 

follow the resubmission procedure in 

this paragraph as many times as it 

chooses so long as in each case it makes 

a bona fide attempt to correct the 

reasons identified by the utility, and in 

each case the deadline set forth in this 

paragraph shall apply to the utility’s 

review. 

(2) Application review on the merits. 

A utility shall respond to the new 

attacher either by granting access or, 

consistent with § 1.1403(b), denying 

access within 45 days of receipt of a 

complete application to attach facilities 

to its utility poles (or within 60 days in 

the case of larger orders as described in 

paragraph (g) of this section). A utility 

may not deny the new attacher pole 

access based on a preexisting violation 

not caused by any prior attachments of 

the new attacher. 

(3) Survey. (i) A utility shall complete 

a survey of poles for which access has 

been requested within 45 days of receipt 

of a complete application to attach 

facilities to its utility poles (or within 60 

days in the case of larger orders as 

described in paragraph (g) of this 

section). 

(ii) A utility shall permit the new 

attacher and any existing attachers on 

the affected poles to be present for any 

field inspection conducted as part of the 

utility’s survey. A utility shall use 

commercially reasonable efforts to 

provide the affected attachers with 

advance notice of not less than 3 

business days of any field inspection as 

part of the survey and shall provide the 

date, time, and location of the survey, 

and name of the contractor performing 

the survey. 

(iii) Where a new attacher has 

conducted a survey pursuant to 


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paragraph (j)(3) of this section, a utility 

can elect to satisfy its survey obligations 

in this paragraph by notifying affected 

attachers of its intent to use the survey 

conducted by the new attacher pursuant 

to paragraph (j)(3) of this section and by 

providing a copy of the survey to the 

affected attachers within the time period 

set forth in paragraph (c)(3)(i) of this 

section. A utility relying on a survey 

conducted pursuant to paragraph (j)(3) 

of this section to satisfy all of its 

obligations under paragraph (c)(3)(i) of 

this section shall have 15 days to make 

such a notification to affected attachers 

rather than a 45 day survey period. 

(d) Estimate. Where a new attacher’s 

request for access is not denied, a utility 

shall present to a new attacher a 

detailed, itemized estimate, on a poleby-pole basis where requested, of 

charges to perform all necessary makeready within 14 days of providing the 

response required by paragraph (c) of 

this section, or in the case where a new 

attacher has performed a survey, within 

14 days of receipt by the utility of such 

survey. Where a pole-by-pole estimate is 

requested and the utility incurs fixed 

costs that are not reasonably calculable 

on a pole-by-pole basis, the utility 

present charges on a per-job basis rather 

than present a pole-by-pole estimate for 

those fixed cost charges. The utility 

shall provide documentation that is 

sufficient to determine the basis of all 

estimated charges, including any 

projected material, labor, and other 

related costs that form the basis of its 

estimate. 

* * * * * 

(2) A new attacher may accept a valid 

estimate and make payment any time 

after receipt of an estimate, except it 

may not accept after the estimate is 

withdrawn. 

(3) Final invoice: After the utility 

completes make-ready, if the final cost 

of the work differs from the estimate, it 

shall provide the new attacher with a 

detailed, itemized final invoice of the 

actual make-ready charges incurred, on 

a pole-by-pole basis where requested, to 

accommodate the new attacher’s 

attachment. Where a pole-by-pole 

estimate is requested and the utility 

incurs fixed costs that are not 

reasonably calculable on a pole-by-pole 

basis, the utility may present charges on 

a per-job basis rather than present a 

pole-by-pole invoice for those fixed cost 

charges. The utility shall provide 

documentation that is sufficient to 

determine the basis of all estimated 

charges, including any projected 

material, labor, and other related costs 

that form the basis of its estimate. 

(4) A utility may not charge a new 

attacher to bring poles, attachments, or 

third-party equipment into compliance 

with current published safety, 

reliability, and pole owner construction 

standards guidelines if such poles, 

attachments, or third-party equipment 

were out of compliance because of work 

performed by a party other than the new 

attacher prior to the new attachment. 

(e) * * * 

(1) For attachments in the 

communications space, the notice shall: 

(i) Specify where and what makeready will be performed. 

(ii) Set a date for completion of makeready in the communications space that 

is no later than 30 days after notification 

is sent (or up to 75 days in the case of 

larger orders as described in paragraph 

(g) of this section). 

(iii) State that any entity with an 

existing attachment may modify the 

attachment consistent with the specified 

make-ready before the date set for 

completion. 

(iv) State that if make-ready is not 

completed by the completion date set by 

the utility in paragraph (e)(1)(ii) in this 

section, the new attacher may complete 

the make-ready specified pursuant to 

paragraph (e)(1)(i) in this section. 

(v) State the name, telephone number, 

and email address of a person to contact 

for more information about the makeready procedure. 

(2) For attachments above the 

communications space, the notice shall: 

(i) Specify where and what makeready will be performed. 

(ii) Set a date for completion of makeready that is no later than 90 days after 

notification is sent (or 135 days in the 

case of larger orders, as described in 

paragraph (g) of this section). 

(iii) State that any entity with an 

existing attachment may modify the 

attachment consistent with the specified 

make-ready before the date set for 

completion. 

(iv) State that the utility may assert its 

right to 15 additional days to complete 

make-ready. 

(v) State that if make-ready is not 

completed by the completion date set by 

the utility in paragraph (e)(2)(ii) in this 

section (or, if the utility has asserted its 

15-day right of control, 15 days later), 

the new attacher may complete the 

make-ready specified pursuant to 

paragraph (e)(1)(i) of this section. 

(vi) State the name, telephone 

number, and email address of a person 

to contact for more information about 

the make-ready procedure. 

(3) Once a utility provides the notices 

described in this section, it then must 

provide the new attacher with a copy of 

the notices and the existing attachers’ 

contact information and address where 

the utility sent the notices. The new 

attacher shall be responsible for 

coordinating with existing attachers to 

encourage their completion of makeready by the dates set forth by the utility 

in paragraph (e)(1)(ii) of this section for 

communications space attachments or 

paragraph (e)(2)(ii) of this section for 

attachments above the communications 

space. 

(f) A utility shall complete its makeready in the communications space by 

the same dates set for existing attachers 

in paragraph (e)(1)(ii) of this section or 

its make-ready above the 

communications space by the same 

dates for existing attachers in paragraph 

(e)(2)(ii) of this section (or if the utility 

has asserted its 15-day right of control, 

15 days later). 

(g) * * * 

(1) A utility shall apply the timeline 

described in paragraphs (c) through (e) 

of this section to all requests for 

attachment up to the lesser of 300 poles 

or 0.5 percent of the utility’s poles in a 

state. 

* * * * * 

(4) A utility shall negotiate in good 

faith the timing of all requests for 

attachment larger than the lesser of 3000 

poles or 5 percent of the utility’s poles 

in a state. 

(5) A utility may treat multiple 

requests from a single new attacher as 

one request when the requests are filed 

within 30 days of one another. 

(h) Deviation from the time limits 

specified in this section. (1) A utility 

may deviate from the time limits 

specified in this section before offering 

an estimate of charges if the parties have 

no agreement specifying the rates, 

terms, and conditions of attachment. 

(2) A utility may deviate from the 

time limits specified in this section 

during performance of make-ready for 

good and sufficient cause that renders it 

infeasible for the utility to complete 

make-ready within the time limits 

specified in this section. A utility that 

so deviates shall immediately notify, in 

writing, the new attacher and affected 

existing attachers and shall identify the 

affected poles and include a detailed 

explanation of the reason for the 

deviation and a new completion date. 

The utility shall deviate from the time 

limits specified in this section for a 

period no longer than necessary to 

complete make-ready on the affected 

poles and shall resume make-ready 

without discrimination when it returns 

to routine operations. A utility cannot 

delay completion of make-ready because 

of a preexisting violation on an affected 

pole not caused by the new attacher. 


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(3) An existing attacher may deviate 

from the time limits specified in this 

section during performance of complex 

make-ready for reasons of safety or 

service interruption that renders it 

infeasible for the existing attacher to 

complete complex make-ready within 

the time limits specified in this section. 

An existing attacher that so deviates 

shall immediately notify, in writing, the 

new attacher and other affected existing 

attachers and shall identify the affected 

poles and include a detailed 

explanation of the basis for the 

deviation and a new completion date, 

which in no event shall extend beyond 

60 days from the date the notice 

described in paragraph (e)(1) of this 

section is sent by the utility (or up to 

105 days in the case of larger orders 

described in paragraph (g) of this 

section). The existing attacher shall 

deviate from the time limits specified in 

this section for a period no longer than 

necessary to complete make-ready on 

the affected poles. 

(i) Self-help remedy—(1) Surveys. If a 

utility fails to complete a survey as 

specified in paragraph (c)(3)(i) of this 

section, then a new attacher may 

conduct the survey in place of the 

utility and, as specified in § 1.1412, hire 

a contractor to complete a survey. 

(i) A new attacher shall permit the 

affected utility and existing attachers to 

be present for any field inspection 

conducted as part of the new attacher’s 

survey. 

(ii) A new attacher shall use 

commercially reasonable efforts to 

provide the affected utility and existing 

attachers with advance notice of not less 

than 3 business days of a field 

inspection as part of any survey it 

conducts. The notice shall include the 

date and time of the survey, a 

description of the work involved, and 

the name of the contractor being used by 

the new attacher. 

(2) Make-ready. If make-ready is not 

complete by the date specified in 

paragraph (e) of this section, then a new 

attacher may conduct the make-ready in 

place of the utility and existing 

attachers, and, as specified in § 1.1412, 

hire a contractor to complete the makeready. 

(i) A new attacher shall permit the 

affected utility and existing attachers to 

be present for any make-ready. A new 

attacher shall use commercially 

reasonable efforts to provide the affected 

utility and existing attachers with 

advance notice of not less than 5 days 

of the impending make-ready. The 

notice shall include the date and time 

of the make-ready, a description of the 

work involved, and the name of the 

contractor being used by the new 

attacher. 

(ii) The new attacher shall notify an 

affected utility or existing attacher 

immediately if make-ready damages the 

equipment of a utility or an existing 

attacher or causes an outage that is 

reasonably likely to interrupt the service 

of a utility or existing attacher. Upon 

receiving notice from the new attacher, 

the utility or existing attacher may 

either: 

(A) Complete any necessary remedial 

work and bill the new attacher for the 

reasonable costs related to fixing the 

damage; or 

(B) Require the new attacher to fix the 

damage at its expense immediately 

following notice from the utility or 

existing attacher. 

(iii) A new attacher shall notify the 

affected utility and existing attachers 

within 15 days after completion of 

make-ready on a particular pole. The 

notice shall provide the affected utility 

and existing attachers at least 90 days 

from receipt in which to inspect the 

make-ready. The affected utility and 

existing attachers have 14 days after 

completion of their inspection to notify 

the new attacher of any damage or code 

violations caused by make-ready 

conducted by the new attacher on their 

equipment. If the utility or an existing 

attacher notifies the new attacher of 

such damage or code violations, then 

the utility or existing attacher shall 

provide adequate documentation of the 

damage or the code violations. The 

utility or existing attacher may either 

complete any necessary remedial work 

and bill the new attacher for the 

reasonable costs related to fixing the 

damage or code violations or require the 

new attacher to fix the damage or code 

violations at its expense within 14 days 

following notice from the utility or 

existing attacher. 

(3) Pole replacements. Self-help shall 

not be available for pole replacements. 

(j) One-touch make-ready option. For 

attachments involving simple makeready, new attachers may elect to 

proceed with the process described in 

this paragraph in lieu of the attachment 

process described in paragraphs (c) 

through (f) and (i) of this section. 

(1) Attachment application. (i) A new 

attacher electing the one-touch makeready process must elect the one-touch 

make-ready process in writing in its 

attachment application and must 

identify the simple make-ready that it 

will perform. It is the responsibility of 

the new attacher to ensure that its 

contractor determines whether the 

make-ready requested in an attachment 

application is simple. 

(ii) The utility shall review the new 

attacher’s attachment application for 

completeness before reviewing the 

application on its merits. An attachment 

application is considered complete if it 

provides the utility with the information 

necessary under its procedures, as 

specified in a master service agreement 

or in publicly-released requirements at 

the time of submission of the 

application, to make an informed 

decision on the application. 

(A) A utility has 10 business days 

after receipt of a new attacher’s 

attachment application in which to 

determine whether the application is 

complete and notify the attacher of that 

decision. If the utility does not respond 

within 10 business days after receipt of 

the application, or if the utility rejects 

the application as incomplete but fails 

to specify any reasons in the 

application, then the application is 

deemed complete. 

(B) If the utility timely notifies the 

new attacher that its attachment 

application is not complete, then the 

utility must specify all reasons for 

finding it incomplete. Any resubmitted 

application need only address the 

utility’s reasons for finding the 

application incomplete and shall be 

deemed complete within 5 business 

days after its resubmission, unless the 

utility specifies to the new attacher 

which reasons were not addressed and 

how the resubmitted application did not 

sufficiently address the reasons. The 

applicant may follow the resubmission 

procedure in this paragraph as many 

times as it chooses so long as in each 

case it makes a bona fide attempt to 

correct the reasons identified by the 

utility, and in each case the deadline set 

forth in this paragraph shall apply to the 

utility’s review. 

(2) Application review on the merits. 

The utility shall review on the merits a 

complete application requesting onetouch make-ready and respond to the 

new attacher either granting or denying 

an application within 15 days of the 

utility’s receipt of a complete 

application (or within 30 days in the 

case of larger orders as described in 

paragraph (g) of this section). 

(i) If the utility denies the application 

on its merits, then its decision shall be 

specific, shall include all relevant 

evidence and information supporting its 

decision, and shall explain how such 

evidence and information relate to a 

denial of access for reasons of lack of 

capacity, safety, reliability, or 

engineering standards. 

(ii) Within the 15-day application 

review period (or within 30 days in the 

case of larger orders as described in 

paragraph (g) of this section), a utility 


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may object to the designation by the 

new attacher’s contractor that certain 

make-ready is simple. If the utility 

objects to the contractor’s determination 

that make-ready is simple, then it is 

deemed complex. The utility’s objection 

is final and determinative so long as it 

is specific and in writing, includes all 

relevant evidence and information 

supporting its decision, made in good 

faith, and explains how such evidence 

and information relate to a 

determination that the make-ready is 

not simple. 

(3) Surveys. The new attacher is 

responsible for all surveys required as 

part of the one-touch make-ready 

process and shall use a contractor as 

specified in § 1.1412(b). 

(i) The new attacher shall permit the 

utility and any existing attachers on the 

affected poles to be present for any field 

inspection conducted as part of the new 

attacher’s surveys. The new attacher 

shall use commercially reasonable 

efforts to provide the utility and affected 

existing attachers with advance notice 

of not less than 3 business days of a 

field inspection as part of any survey 

and shall provide the date, time, and 

location of the surveys, and name of the 

contractor performing the surveys. 

(ii) [Reserved]. 

(4) Make-ready. If the new attacher’s 

attachment application is approved and 

if it has provided 15 days prior written 

notice of the make-ready to the affected 

utility and existing attachers, the new 

attacher may proceed with make-ready 

using a contractor in the manner 

specified for simple make-ready in 

§ 1.1412(b). 

(i) The prior written notice shall 

include the date and time of the makeready, a description of the work 

involved, the name of the contractor 

being used by the new attacher, and 

provide the affected utility and existing 

attachers a reasonable opportunity to be 

present for any make-ready. 

(ii) The new attacher shall notify an 

affected utility or existing attacher 

immediately if make-ready damages the 

equipment of a utility or an existing 

attacher or causes an outage that is 

reasonably likely to interrupt the service 

of a utility or existing attacher. Upon 

receiving notice from the new attacher, 

the utility or existing attacher may 

either: 

(A) Complete any necessary remedial 

work and bill the new attacher for the 

reasonable costs related to fixing the 

damage; or 

(B) Require the new attacher to fix the 

damage at its expense immediately 

following notice from the utility or 

existing attacher. 

(iii) In performing make-ready, if the 

new attacher or the utility determines 

that make-ready classified as simple is 

complex, then that specific make-ready 

must be halted and the determining 

party must provide immediate notice to 

the other party of its determination and 

the impacted poles. The affected makeready shall then be governed by 

paragraphs (d) through (i) of this section 

and the utility shall provide the notice 

required by paragraph (e) of this section 

as soon as reasonably practicable. 

(5) Post-make-ready timeline. A new 

attacher shall notify the affected utility 

and existing attachers within 15 days 

after completion of make-ready on a 

particular pole. The notice shall provide 

the affected utility and existing 

attachers at least 90 days from receipt in 

which to inspect the make-ready. The 

affected utility and existing attachers 

have 14 days after completion of their 

inspection to notify the new attacher of 

any damage or code violations caused 

by make-ready conducted by the new 

attacher on their equipment. If the 

utility or an existing attacher notifies 

the new attacher of such damage or code 

violations, then the utility or existing 

attacher shall provide adequate 

documentation of the damage or the 

code violations. The utility or existing 

attacher may either complete any 

necessary remedial work and bill the 

new attacher for the reasonable costs 

related to fixing the damage or code 

violations or require the new attacher to 

fix the damage or code violations at its 

expense within 14 days following notice 

from the utility or existing attacher. 

■ 5. Amend § 1.1412 by revising 

paragraphs (a), (b), and (c) to read as 

follows: 

§ 1.1412 Contractors for surveys and 

make-ready. 

(a) Contractors for self-help complex 

and above the communications space 

make-ready. A utility shall make 

available and keep up-to-date a 

reasonably sufficient list of contractors 

it authorizes to perform self-help 

surveys and make-ready that is complex 

and self-help surveys and make-ready 

that is above the communications space 

on its poles. The new attacher must use 

a contractor from this list to perform 

self-help work that is complex or above 

the communications space. New and 

existing attachers may request the 

addition to the list of any contractor that 

meets the minimum qualifications in 

paragraphs (c)(1) through (5) of this 

section and the utility may not 

unreasonably withhold its consent. 

(b) Contractors for simple work. A 

utility may, but is not required to, keep 

up-to-date a reasonably sufficient list of 

contractors it authorizes to perform 

surveys and simple make-ready. If a 

utility provides such a list, then the new 

attacher must choose a contractor from 

the list to perform the work. New and 

existing attachers may request the 

addition to the list of any contractor that 

meets the minimum qualifications in 

paragraphs (c)(1) through (5) of this 

section and the utility may not 

unreasonably withhold its consent. 

(1) If the utility does not provide a list 

of approved contractors for surveys or 

simple make-ready or no utilityapproved contractor is available within 

a reasonable time period, then the new 

attacher may choose its own qualified 

contractor that meets the requirements 

in paragraph (c) of this section. When 

choosing a contractor that is not on a 

utility-provided list, the new attacher 

must certify to the utility that its 

contractor meets the minimum 

qualifications described in paragraph (c) 

of this section when providing notices 

required by § 1.1411(i)(1)(ii), (i)(2)(i), 

(j)(3)(i), and (j)(4). 

(2) The utility may disqualify any 

contractor chosen by the new attacher 

that is not on a utility-provided list, but 

such disqualification must be based on 

reasonable safety or reliability concerns 

related to the contractor’s failure to meet 

any of the minimum qualifications 

described in paragraph (c) of this 

section or to meet the utility’s publicly 

available and commercially reasonable 

safety or reliability standards. The 

utility must provide notice of its 

contractor objection within the notice 

periods provided by the new attacher in 

§ 1.1411(i)(1)(ii), (i)(2)(i), (j)(3)(i), and 

(j)(4) and in its objection must identify 

at least one available qualified 

contractor. 

(c) Contractor minimum qualification 

requirements. Utilities must ensure that 

contractors on a utility-provided list, 

and new attachers must ensure that 

contractors they select pursuant to 

paragraph (b)(1) of this section, meet the 

following minimum requirements: 

(1) The contractor has agreed to 

follow published safety and operational 

guidelines of the utility, if available, but 

if unavailable, the contractor shall agree 

to follow National Electrical Safety Code 

(NESC) guidelines; 

(2) The contractor has acknowledged 

that it knows how to read and follow 

licensed-engineered pole designs for 

make-ready, if required by the utility; 

(3) The contractor has agreed to 

follow all local, state, and federal laws 

and regulations including, but not 

limited to, the rules regarding Qualified 

and Competent Persons under the 

requirements of the Occupational and 


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46840 Federal Register / Vol. 83, No. 179 / Friday, September 14, 2018 / Rules and Regulations 

Safety Health Administration (OSHA) 

rules; 

(4) The contractor has agreed to meet 

or exceed any uniformly applied and 

reasonable safety and reliability 

thresholds set by the utility, if made 

available; and 

(5) The contractor is adequately 

insured or will establish an adequate 

performance bond for the make-ready it 

will perform, including work it will 

perform on facilities owned by existing 

attachers. 

* * * * * 

■ 6. Revise § 1.1413 to read as follows: 

§ 1.1413 Complaints by incumbent local 

exchange carriers. 

(a) A complaint by an incumbent local 

exchange carrier (as defined in 47 U.S.C. 

251(h)) or an association of incumbent 

local exchange carriers alleging that it 

has been denied access to a pole, duct, 

conduit, or right-of-way owned or 

controlled by a local exchange carrier or 

that a utility’s rate, term, or condition 

for a pole attachment is not just and 

reasonable shall follow the same 

complaint procedures specified for 

other pole attachment complaints in this 

part. 

(b) In complaint proceedings 

challenging utility pole attachment 

rates, terms, and conditions for pole 

attachment contracts entered into or 

renewed after the effective date of this 

section, there is a presumption that an 

incumbent local exchange carrier (or an 

association of incumbent local exchange 

carriers) is similarly situated to an 

attacher that is a telecommunications 

carrier (as defined in 47 U.S.C. 

251(a)(5)) or a cable television system 

providing telecommunications services 

for purposes of obtaining comparable 

rates, terms, or conditions. In such 

complaint proceedings challenging pole 

attachment rates, there is a presumption 

that incumbent local exchange carriers 

(or an association of incumbent local 

exchange carriers) may be charged no 

higher than the rate determined in 

accordance with § 1.1406(e)(2). A utility 

can rebut either or both of the two 

presumptions in this paragraph (b) with 

clear and convincing evidence that the 

incumbent local exchange carrier 

receives benefits under its pole 

attachment agreement with a utility that 

materially advantages the incumbent 

local exchange carrier over other 

telecommunications carriers or cable 

television systems providing 

telecommunications services on the 

same poles. 

■ 7. Add § 1.1415 to read as follows: 

§ 1.1415 Overlashing. 

(a) Prior approval. A utility shall not 

require prior approval for: 

(1) An existing attacher that 

overlashes its existing wires on a pole; 

or 

(2) For third party overlashing of an 

existing attachment that is conducted 

with the permission of an existing 

attacher. 

(b) Preexisting violations. A utility 

may not prevent an attacher from 

overlashing because another existing 

attacher has not fixed a preexisting 

violation. A utility may not require an 

existing attacher that overlashes its 

existing wires on a pole to fix 

preexisting violations caused by another 

existing attacher. 

(c) Advance notice. A utility may 

require no more than 15 days’ advance 

notice of planned overlashing. If a 

utility requires advance notice for 

overlashing, then the utility must 

provide existing attachers with advance 

written notice of the notice requirement 

or include the notice requirement in the 

attachment agreement with the existing 

attacher. If after receiving advance 

notice, the utility determines that an 

overlash would create a capacity, safety, 

reliability, or engineering issue, it must 

provide specific documentation of the 

issue to the party seeking to overlash 

within the 15 day advance notice period 

and the party seeking to overlash must 

address any identified issues before 

continuing with the overlash either by 

modifying its proposal or by explaining 

why, in the party’s view, a modification 

is unnecessary. A utility may not charge 

a fee to the party seeking to overlash for 

the utility’s review of the proposed 

overlash. 

(d) Overlashers’ responsibility. A 

party that engages in overlashing is 

responsible for its own equipment and 

shall ensure that it complies with 

reasonable safety, reliability, and 

engineering practices. If damage to a 

pole or other existing attachment results 

from overlashing or overlashing work 

causes safety or engineering standard 

violations, then the overlashing party is 

responsible at its expense for any 

necessary repairs. 

(e) Post-overlashing review. An 

overlashing party shall notify the 

affected utility within 15 days of 

completion of the overlash on a 

particular pole. The notice shall provide 

the affected utility at least 90 days from 

receipt in which to inspect the overlash. 

The utility has 14 days after completion 

of its inspection to notify the 

overlashing party of any damage or code 

violations to its equipment caused by 

the overlash. If the utility discovers 

damage or code violations caused by the 

overlash on equipment belonging to the 

utility, then the utility shall inform the 

overlashing party and provide adequate 

documentation of the damage or code 

violations. The utility may either 

complete any necessary remedial work 

and bill the overlashing party for the 

reasonable costs related to fixing the 

damage or code violations or require the 

overlashing party to fix the damage or 

code violations at its expense within 14 

days following notice from the utility. 

[FR Doc. 2018–19547 Filed 9–13–18; 8:45 am] 

BILLING CODE 6712–01–P 


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