Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations 2151 

TABLE 5 TO PARAGRAPH (b)(12)(ii)—Continued 

U.S. Code citation Maximum penalty after 2024 annual inflation adjustment 

47 U.S.C. 503(b)(2)(B) ............................................................................. $244,958. 

$2,449,575. 

47 U.S.C. 503(b)(2)(C) ............................................................................. $495,500. 

$4,573,840. 

47 U.S.C. 503(b)(2)(D) ............................................................................. $24,496. 

$183,718. 

47 U.S.C. 503(b)(2)(F) ............................................................................. $140,674. 

$1,406,728. 

47 U.S.C. 507(a) ...................................................................................... $2,426. 

47 U.S.C. 507(b) ...................................................................................... $356. 

47 U.S.C. 511 ........................................................................................... $2,391,097. 

$119,555. 

47 U.S.C. 554 ........................................................................................... $1,086. 

Sec. 6507(b)(4) of Tax Relief Act ............................................................ $1,317,380/incident. 

Sec. 6507(b)(5) of Tax Relief Act ............................................................ $131,738/call. 

* * * * * 

[FR Doc. 2024–00624 Filed 1–11–24; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 17–84; FCC 23–109; FR 

ID 195734] 

Accelerating Wireline Broadband 

Deployment by Removing Barriers to 

Infrastructure Investment 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) establishes rules creating 

a new process for the Commission’s 

review and assessment of pole 

attachment disputes that impede or 

delay broadband deployment in order to 

expedite resolution of such disputes, 

and providing communications 

providers with information about the 

status of the utility poles they plan to 

use as they map out their broadband 

buildouts. 

DATES: Effective February 12, 2024, 

except for §§ 1.1411(c)(4) (amendatory 

instruction 2) and 1.1415 (amendatory 

instruction 4), which are delayed 

indefinitely. The Commission will 

publish a document in the Federal 

Register announcing the effective date 

for those sections. 

FOR FURTHER INFORMATION CONTACT: For 

further information, please contact 

either Michele Berlove, Assistant 

Division Chief, Competition Policy 

Division, Wireline Competition Bureau, 

at michele.berlove@fcc.gov or at (202) 

418–1477, or Michael Ray, Attorney 

Advisor, Competition Policy Division, 

Wireline Competition Bureau, at 

michael.ray@fcc.gov or at (202) 418– 

0357. For additional information 

concerning the Paperwork Reduction 

Act proposed information collection 

requirements contained in this 

document, send an email toPRA@

fcc.govor contact Nicole Ongele at (202) 

418–2991. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Fourth 

Report and Order in WC Docket No. 17– 

84, adopted December 13, 2023, and 

released December 15, 2023. The full 

text of this document is available for 

public inspection at the following 

internet address: https://docs.fcc.gov/ 

public/attachments/FCC-23-109A1.pdf. 

To request materials in accessible 

formats for people with disabilities (e.g., 

Braille, large print, electronic files, 

audio format), send an email to fcc504@

fcc.gov or call the Consumer & 

Governmental Affairs Bureau at (202) 

418–0530. 

Synopsis 

I. Introduction

1. Access to a broadband connection

is a necessity of modern life. With 

consumers more dependent than ever 

on fixed and mobile broadband 

networks for work, healthcare services, 

education, and social activities, the 

Commission remains committed to 

ensuring consumers across the nation 

have meaningful access to broadband. 

With the support of the Commission’s 

universal service fund, the 

Infrastructure Investment and Jobs Act, 

which included the largest ever Federal 

investment in broadband, as well as 

other Federal and state broadband 

deployment programs, more funding 

than ever is available to build the 

necessary infrastructure to bring muchneeded broadband services to unserved 

and underserved areas in the United 

States. Key to these broadband projects 

are the utility poles that support the 

wires and the wireless equipment that 

carry broadband to American homes 

and businesses. 

2. Over the last several years, the

Commission has taken significant steps 

in setting the ‘‘rules for the road’’ for the 

discussions between utilities and 

telecommunications companies about 

the timing and cost of attaching 

broadband equipment to utility poles, 

with the backstop of a robust complaint 

process when parties cannot agree on 

the rates, terms, and conditions for pole 

attachments. (Note that section 224(c) of 

the Communications Act of 1934, as 

amended (the Act), exempts from 

Commission jurisdiction those pole 

attachments in states that have elected 

to regulate pole attachments themselves. 

To date, 23 states and the District of 

Columbia have opted out of 

Commission regulation of pole 

attachments in their jurisdictions. The 

Commission’s pole attachment rules 

currently only apply to cable operators 

and providers of telecommunications 

services and therefore do not apply to 

broadband-only internet service 

providers. We recently proposed to 

reclassify broadband internet access 

service as a telecommunications service, 

which would, if completed, apply 

section 224 and the Commission’s pole 

attachment rules to broadband-only 

internet service providers.) In this item, 

we take additional steps to speed 

broadband deployment by making the 

pole attachment process faster, more 

transparent, and more cost effective. 

Specifically, we adopt rules (1) 

establishing a new process for the 

Commission’s review and assessment of 

pole attachment disputes that impede or 

delay broadband deployment in order to 

expedite resolution of such disputes, 

and (2) providing communications 

providers with information about the 


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status of the utility poles they plan to 

use as they map out their broadband 

builds. 

II. Background 

3. In 1996, as part of its 

implementation of the pole attachment 

requirements located in sections 224(h) 

and 224(i) of the Act, the Commission 

determined that when a modification, 

such as a pole replacement, is 

undertaken for the benefit of a particular 

party, then under cost causation 

principles, the benefiting party must 

assume the cost of the modification. 

(Section 224(h) states that whenever the 

owner of a pole, duct, conduit, or rightof-way intends to modify or alter such 

pole, duct, conduit, or right-of-way, the 

owner shall provide written notification 

of such action to any entity that has 

obtained an attachment to such conduit 

or right-of-way so that such entity may 

have a reasonable opportunity to add to 

or modify its existing attachment. Any 

entity that adds to or modifies its 

existing attachment after receiving such 

notification shall bear a proportionate 

share of the costs incurred by the owner 

in making such pole, duct, conduit, or 

right-of-way accessible. Section 224(i) 

states that an entity that obtains an 

attachment to a pole, conduit, or rightof-way shall not be required to bear any 

of the costs of rearranging or replacing 

its attachment, if such rearrangement or 

replacement is required as a result of an 

additional attachment or the 

modification of an existing attachment 

sought by any other entity (including 

the owner of such pole, duct, conduit, 

or right-of-way).) The Commission also 

found that when a utility decides to 

modify a pole for its own benefit, and 

no other attachers derive a benefit from 

the modification, the utility must bear 

the full cost of the new pole. The 

Commission further adopted a cost 

sharing principle for when an existing 

attacher uses a modification by another 

party as an opportunity to add to or 

modify its own attachments and applied 

this principle to utilities and other 

attachers seeking to use modifications as 

an opportunity to bring their own 

facilities into compliance with safety or 

other requirements. In the 2018 Wireline 

Infrastructure Order (83 FR 31659–02, 

July 9, 2018), the Commission reiterated 

that application of the cost sharing 

principle. 

4. On July 16, 2020, NCTA—the 

internet & Television Association 

(NCTA) filed a Petition asking the 

Commission to clarify its rules in the 

context of pole replacements. 

Specifically, NCTA asked the 

Commission to declare that: (1) utilities 

must share in the cost of pole 

replacements in unserved areas 

pursuant to section 224 of the Act, 

§ 1.1408(b) of the Commission’s rules, 

and Commission precedent; (2) pole 

attachment complaints arising in 

unserved areas should be prioritized 

through placement on the Accelerated 

Docket under § 1.736 of the 

Commission’s rules; and (3) § 1.1407(b) 

of the Commission’s rules authorizes the 

Commission to order a utility to 

complete a pole replacement within a 

specified time frame or designate an 

authorized contractor to do so. NCTA 

argued that without Commission action, 

the costs and operational challenges 

associated with pole replacements will 

inhibit attachers from deploying 

broadband services to Americans in 

unserved areas. 

5. In the 2021 Pole Replacement 

Declaratory Ruling, although the 

Wireline Competition Bureau declined 

to act on NCTA’s Petition, finding that 

‘‘it is more appropriate to address 

questions concerning the allocation of 

pole replacement costs within the 

context of a rulemaking, which provides 

the Commission with greater flexibility 

to tailor regulatory solutions,’’ it 

observed that the record developed in 

response to the NCTA Petition revealed 

inconsistent practices by utilities with 

regard to cost responsibility for pole 

replacements. Accordingly, the Bureau 

clarified that, pursuant to § 1.1408(b) of 

the Commission’s rules and prior 

precedent, ‘‘utilities may not require 

requesting attachers to pay the entire 

cost of pole replacements that are not 

solely caused by the new attacher and, 

thus, may not avoid responsibility for 

pole replacement costs by postponing 

replacements until new attachment 

requests are submitted.’’ The 

Commission subsequently affirmed the 

Bureau’s clarifications. 

6. Last year, the Commission issued a 

Second Further Notice of Proposed 

Rulemaking (Second FNPRM) (87 FR 

25181–01, Apr. 28, 2022) in this 

proceeding seeking comment on the 

universe of situations where the 

requesting attacher should not be 

required to pay for the full cost of a pole 

replacement and the proper allocation 

of costs among utilities and attachers in 

those situations. (To the extent that the 

Fourth Report and Order does not 

expressly address a topic that was 

subject to comment in the Second 

FNPRM, that issue remains pending.) 

Specifically, the Commission sought 

comment on the applicability of cost 

causation and cost allocation principles 

in the context of pole replacements— 

e.g., when is a pole replacement not 

caused (necessitated solely) by a new 

attachment request, and when and how 

parties must share in the costs of a pole 

replacement. The Commission also 

sought comment on the extent to which 

utilities directly benefit from pole 

replacements, including a utility’s 

responsibility for the costs of pole 

upgrades and modifications unrelated to 

new attachments and the effect of early 

pole retirements on pole replacement 

cost causation and cost allocation 

calculations. The Second FNPRM also 

sought comment on whether the 

Commission should require utilities to 

share information with potential 

attachers concerning the condition and 

replacement status of their poles and 

other measures that may help avoid or 

expedite the resolution of disputes 

between the parties, including whether 

to expand use of the Commission’s 

Accelerated Docket for pole attachment 

complaints and the specific criteria that 

Commission staff should use in 

deciding whether to place a pole 

complaint on the Accelerated Docket. 

(To the extent that the Fourth Report 

and Order does not expressly address a 

topic that was subject to comment in the 

Second FNPRM, that issue remains 

pending.) 

III. Report and Order 

7. In the Fourth Report and Order, we 

adopt measures to expedite resolution of 

pole attachment disputes that impede or 

delay broadband deployment. 

Specifically, we (1) establish an agencywide rapid response team to provide 

coordinated review and assessment of 

such pole attachment disputes and to 

recommend effective dispute resolution 

procedures, and (2) adopt specific 

criteria to guide that team when 

considering whether a complaint (or 

portion thereof) should be included on 

the Enforcement Bureau’s Accelerated 

Docket. We also require utilities to 

provide information regarding pole 

conditions and scheduled replacements 

to the extent that information is 

contained in cyclical pole inspection 

reports that utilities already create and 

maintain in the ordinary course of their 

business, or in pole inspection reports 

created between cyclical reports. (Both 

pole attachers and utilities made several 

other proposals, not addressed herein, 

regarding the process for pole 

attachments and replacements and ways 

they believe the process could be 

improved to reduce disputes and 

promote broadband deployment.) 

A. Accelerating Resolution of Pole 

Attachment Disputes That Impede or 

Delay Broadband Deployment 

8. We amend our rules to prioritize 

and expedite the resolution of pole 

attachment disputes that impede or 


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delay broadband deployment by 

establishing a Commission intra-agency 

rapid response team—called the Rapid 

Broadband Assessment Team (RBAT)— 

to provide coordinated review and 

assessment of such disputes. (We codify 

these amendments in part 1, subpart J, 

of the Commission’s rules (i.e., Pole 

Attachment Complaint Procedures) by 

redesignating current § 1.1415 as 

§ 1.1416 and adding a new § 1.1415. 

These rule amendments apply only to 

disputes involving pole attachments of 

a cable television system or a provider 

of telecommunications service and do 

not apply to disputes involving pole 

attachments of a broadband-only 

internet service provider. They also do 

not apply to disputes involving poles 

that are owned or controlled by a 

railroad, the Federal Government, a 

state (including a political subdivision 

thereof such as a municipality), or a 

cooperative association, or where the 

poles at issue are located in a state, or 

the District of Columbia, that has 

certified to the Commission that it 

regulates the rates, terms, and 

conditions of pole attachments in that 

state or jurisdiction pursuant to 47 

U.S.C. 224(c). Should we adopt the 

proposal set forth in the Open internet 

NPRM (88 FR 76048–01, Nov. 3, 2023) 

to reclassify broadband-only internet 

service as a telecommunications service, 

section 224 would once again apply to 

broadband-only internet service 

providers deployments.) At the outset, 

we emphasize that we expect all parties 

to comply with the Commission’s pole 

attachment rules and to negotiate in 

good faith to craft solutions that suit the 

needs of attachers and utilities to 

facilitate deployment projects. We 

recognize, however, that in some 

instances disagreements arise as to the 

conduct of one or multiple parties, and 

we encourage parties in those instances 

to avail themselves of the Commission’s 

dispute resolution processes to both 

facilitate the resolution of disputes and, 

when necessary, use the formal 

adjudication process to develop 

precedent upon which parties can rely 

to settle future potential disputes. In 

this document, we amend our rules to 

create the RBAT in an effort to make the 

Commission’s pole attachment dispute 

resolution process more responsive and 

adaptable with the goal of facilitating 

deployment. 

9. The RBAT will be charged with 

expediting the resolution of these 

disputes by swiftly engaging key 

stakeholders, gathering relevant 

information, distilling issues in dispute, 

and recommending to the parties, where 

appropriate, an abbreviated mediation 

process, placement of a complaint (or 

portion of a complaint) on the 

Accelerated Docket based on 

consideration of specified criteria, and/ 

or any other action that the RBAT 

determines will help the parties resolve 

their dispute. (The Schools, Health & 

Libraries Broadband (SHLB) Coalition 

suggests that creation of the RBAT may 

result in a needless administrative step 

and associated delay, and suggests that 

the RBAT, if created, be vested with 

authority to resolve disputes without 

going through the additional step of a 

complaint process. We decline to adopt 

this approach. The RBAT is designed to 

assist parties in resolving their dispute 

expeditiously without need for 

litigation. But if parties are unable to 

reach a resolution, either through 

mediation or other means, our existing 

complaint procedures, including the 

Accelerated Docket, ensure a means of 

adjudicating the dispute in accordance 

with due process.) 

10. In the Second FNPRM, the 

Commission sought comment on 

NCTA’s proposed adoption of policies 

‘‘favoring the placement of pole 

attachment complaints arising in 

unserved areas on the [Commission’s] 

Accelerated Docket[,]’’ a mechanism 

that requires the Commission to quickly 

resolve disputes between parties within 

60 days. (Under § 1.736(a), complaint 

proceedings on the Accelerated Docket 

must be concluded within 60 days, and 

are therefore subject to shorter pleading 

deadlines and other modifications to the 

procedural rules that govern formal 

complaint proceedings.) It also sought 

comment on measures that would 

expedite the resolution of ‘‘pole 

replacement[ ]’’ disputes and on criteria 

for determining more generally ‘‘when 

pole attachment complaints should be 

placed on the Accelerated Docket.’’ 

Based on broad record support among 

attachers for further streamlining our 

processes as applied to disputes that 

impede or delay broadband deployment, 

we conclude that the targeted measures 

outlined below are warranted and will 

advance the Commission’s goal of 

timely broadband deployment. 

11. As the Commission observed in 

the Second FNPRM, our current rules 

provide a 180-day deadline (or shot 

clock) for final action on pole access 

complaints where a cable television 

system operator or provider of 

telecommunications service claims that 

it has been denied access to a pole, duct, 

conduit, or right-of-way owned or 

controlled by a utility. (For purposes of 

this subsection, the Commission has 

defined a ‘‘pole access complaint’’ as a 

complaint ‘‘filed by a cable television 

system or a provider of 

telecommunications service that alleges 

a complete denial of access to a utility 

pole[,]’’ and clarified that ‘‘[the] term 

[pole access complaint] does not 

encompass a complaint alleging that a 

utility is imposing unreasonable rates, 

terms, or conditions that amount to a 

denial of pole access.’’) In addition, a 

270-day shot clock currently applies to 

final action on all other pole attachment 

complaints (i.e., those alleging unjust or 

unreasonable rates, terms, or conditions 

of attachment). Several commenters 

assert that these timeframes are 

commercially unreasonable for attachers 

seeking to deploy broadband networks, 

particularly in rural or unserved areas. 

(Charter asserts that the ‘‘[m]ere 

existence’’ of a path allowing more 

routine use of the Accelerated Docket 

‘‘could help broadband providers 

resolve disagreements without the need 

for Commission intervention’’ by 

‘‘provid[ing] attachers facing 

government-imposed construction 

deadlines with a more credible option of 

seeking relief, thereby reducing the onesided leverage held by pole owners 

today.’’) NCTA submits that the need for 

expedited procedures has gained greater 

urgency recently for ‘‘providers . . . 

receiving government funds to build out 

broadband under deadlines that afford 

no time for a lengthy complaint 

process.’’ A number of commenters 

therefore propose more routine use of 

the Accelerated Docket, with its 60-day 

shot clock, especially for pole 

attachment disputes involving timesensitive deployments in unserved 

areas. Several commenters also contend 

that the current Accelerated Docket rule 

does not sufficiently motivate utilities to 

comply with their obligation to allow 

pole access because it is unclear when 

Commission staff, in the exercise of 

their discretion under § 1.736(d) of our 

rules, will include a matter on the 

Accelerated Docket. Crown Castle 

asserts that ‘‘without certainty that the 

complaint will be promptly resolved, 

the decision to bring a formal complaint 

to the Commission involves business 

decisions about whether the resolution 

will be too late to meaningfully assist 

the deployment.’’ On the other hand, 

other commenters argue that sweeping 

or widespread imposition of the 

Accelerated Docket rule, with its highly 

compressed timeframes, could raise 

potential fairness and due process 

concerns given the complexity of the 

issues raised in most pole attachment 

cases. (Other commenters question the 

necessity of new rules (1) due to the 

relative infrequency of requests for 

Accelerated Docket treatment, see, e.g., 

Edison Electric Institute Comments at 


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2154 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations 

54 (challenging the need to further 

expedite ‘‘denial of access’’ complaints 

based on ‘‘[t]he complete absence of 

[such] complaints before the 

Commission’’), or (2) due to the lack of 

evidence of instances where dilatory 

actions of utilities have caused 

broadband grant recipients to lose 

access to such funding.) After 

considering these competing concerns, 

we find that the adoption of targeted 

dispute resolution reforms, as set forth 

below, will address the expressed need 

for quicker resolution of pole 

attachment disputes that may impede or 

delay broadband deployment while 

ensuring sufficient fairness and due 

process for all involved parties. 

12. Disputes Subject to RBAT Review 

and Assessment Procedures. The 

Commission asked in the Second 

FNPRM whether any new dispute 

resolution procedures should be 

‘‘limited to complaints that raise only 

discrete pole access issues’’ and do not 

require consideration of ‘‘whether a rate, 

term, or condition of attachment is 

unjust or unreasonable.’’ To address the 

need for timely broadband deployment, 

particularly in unserved or underserved 

areas, we apply the new procedures 

discussed below to any pole attachment 

dispute that a party alleges is impeding 

or delaying the deployment of 

broadband facilities. To provide greater 

clarity regarding when such a dispute 

would be eligible for placement on the 

Accelerated Docket, we also adopt 

below specific criteria that will guide 

the RBAT in determining when a 

dispute is suitable for accelerated 

disposition. In light of the strict time 

constraints of the Accelerated Docket, 

disputes raising relatively 

straightforward legal and evidentiary 

issues, as determined based on the 

RBAT’s review of these criteria, are 

more likely to be considered appropriate 

for placement on the Accelerated 

Docket. 

13. Although the record reflects 

differing views regarding which 

disputes should be subject to new 

dispute resolution procedures, a 

significant proportion of commenters 

seeking such reforms ask that we limit 

the focus of any new procedures to 

disputes that are interfering with active 

broadband deployment plans or 

projects. We adopt this suggestion based 

on our conclusion that focusing on pole 

attachment disputes that impede or 

delay a provider’s ability to deploy new 

broadband facilities will align with, and 

advance most directly, the goal of timely 

broadband deployment. (Several 

utilities argue that across-the-board 

application of dispute resolution 

reforms to an entire category of disputes 

would fail to account for complexities 

in individual cases. But such comments 

assume that Accelerated Docket 

treatment would automatically apply to 

all disputes within the identified 

category. In fact, under the reforms we 

adopt herein, such disputes will receive 

individualized assessment and review 

(by the RBAT) based on a totality of 

factors analysis.) 

14. RBAT Review and Assessment of 

Disputes that Impede or Delay 

Broadband Deployment. To expedite the 

resolution of pole attachment disputes 

that impede or delay an active 

broadband deployment project, we 

amend our rules to establish the RBAT, 

which will be comprised of 

Enforcement Bureau and Wireline 

Competition Bureau staff with expertise 

in the Commission’s pole attachment 

rules and orders. We charge the RBAT 

with prioritizing the resolution of any 

pole attachment dispute that a party 

alleges is impeding or delaying the 

deployment of broadband facilities 

(including where the party is also 

seeking placement of the matter on the 

Accelerated Docket under § 1.736). In 

performing this role, the RBAT will 

gather and promptly review all 

pertinent information submitted by the 

parties and provide guidance and advice 

on the most effective means of resolving 

the parties’ dispute. Where appropriate, 

the RBAT will recommend to the parties 

an abbreviated mediation process, 

placement of a complaint, or portion of 

a complaint, on the Accelerated Docket, 

and/or any other action that the RBAT 

determines will help the parties resolve 

their dispute. The RBAT will 

recommend use of the Accelerated 

Docket where it determines, based upon 

a totality of the criteria outlined below, 

that a complaint, or portion thereof, is 

suitable for accelerated disposition. 

(The RBAT may recommend placement 

of a dispute on the Accelerated Docket 

in the exercise of the discretion afforded 

Commission staff ‘‘to decide whether a 

complaint, or portion of a complaint, is 

suitable for inclusion on the Accelerated 

Docket.’’ A prospective complainant 

may accept the recommendation, with 

or without the consent of the other party 

or parties to the dispute, by moving 

forward with the agreed upon schedule 

and process established by Commission 

staff in the case.) To request RBAT 

review and assessment of a dispute that 

a party to the dispute contends is 

impeding or delaying deployment of 

broadband facilities, the party must first 

notify the Chief of the Enforcement 

Bureau’s Market Disputes Resolution 

Division (MDRD) of the request by 

phone and in writing. (The RBAT 

review and assessment process will be 

available only to attachers and pole 

owners that are direct parties to such 

dispute (including any legal counsel 

retained to represent a party in that 

specific dispute). For parties seeking 

both RBAT review and inclusion of a 

proceeding relating to broadband 

facilities deployment on the Accelerated 

Docket, this initial notification by phone 

and in writing would need to be made 

prior to filing the formal complaint and 

would constitute the notification 

required under § 1.736(b).) The MDRD 

Chief will direct the party to a 

streamlined form on the MDRD 

website—Request for RBAT Review and 

Assessment—and to instructions for 

completing and electronically 

transmitting the form to the RBAT. The 

form will elicit information relevant to 

the scope and nature of the dispute, and 

to whether the dispute is appropriate for 

expedited mediation and/or placement 

on the Accelerated Docket. (The form 

will require a submitting party to 

provide: information identifying the 

parties and the services they offer; the 

section(s) of the Act or Commission rule 

or order alleged to have been violated; 

a brief description of the parties’ dispute 

(including how it relates to broadband 

deployment plans or projects, whether 

such plans or projects are subject to a 

deadline under a government funded 

broadband program, whether the 

dispute arises in an unserved or 

underserved area, what harm is 

occurring or is likely to occur as a result 

of the situation, and what aspects of the 

dispute require immediate redress); the 

specific relief sought; whether the 

parties have entered into a nondisclosure agreement; the steps the 

party has taken to resolve the matter 

with other parties to the dispute; a 

statement as to whether the parties are 

amenable to mediation; and a statement 

indicating whether the party intends to 

seek inclusion of the matter on the 

Accelerated Docket. The form also will 

elicit information relevant to whether 

the dispute is suitable for accelerated 

disposition including, for example, the 

number of poles in question, the 

number and complexity of claims at 

issue, and the likely need for discovery 

or expert affidavits. The RBAT may 

request additional information from the 

submitting party if more information is 

necessary to determine a course of 

action.) 

15. Upon receipt of the completed 

Request for RBAT Review and 

Assessment, the RBAT will schedule a 

meeting through a manner of the 

RBAT’s choosing, with all parties as 

soon as practicable. The RBAT may 


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request a written response from the 

other party or parties to the dispute with 

respect to one or more issues raised by 

the party seeking RBAT review. The 

RBAT also may request that one or both 

parties provide the RBAT with 

documentation or other information 

relevant to the dispute. (NCTA suggests 

that we specify the information the 

respondent will be required to provide. 

We find this approach impracticable, as 

the information required in a response 

will depend on the complainant’s 

allegations. We employ a more flexible 

approach that enables the RBAT to 

request relevant information and 

documentation from either party, as 

appropriate.) In the initial meeting, or in 

a meeting shortly thereafter, the RBAT 

will provide guidance and advice to the 

parties on the most effective means of 

resolving their dispute, including staffsupervised mediation, use of the 

Accelerated Docket, and/or other action. 

(Because mediation will be a prominent 

feature of the RBAT review, we decline 

to adopt INCOMPAS’s proposal that the 

180-day deadline for resolution of a pole 

access complaint be triggered by the 

submission of the request for RBAT 

Review and Assessment. If mediation 

succeeds, there will be no need for a 

complaint. If it does not, the filing of a 

complaint will commence review period 

deadlines under the relevant 

Commission rules.) To that end, the 

RBAT will attempt to distill the issues 

in dispute and identify issues that are 

most impacting a party’s broadband 

deployment plans. For example, the 

RBAT may encourage parties to focus on 

the resolution of one or more threshold 

issues, or what appears to be the most 

urgent issue(s), if it finds that doing so 

may help the parties to narrow their 

dispute. Likewise, the RBAT may 

encourage parties, where appropriate, to 

streamline the proceeding by agreeing to 

focus on ‘‘test cases’’—i.e., disputes over 

specific poles that the parties agree are 

representative of disputes over multiple 

poles. In this way, deciding the issue as 

to the test case will have broader 

impact. 

16. Should the RBAT recommend 

staff-supervised mediation, it shall be 

conducted pursuant to § 1.737 of the 

Commission’s rules. Because § 1.737 

generally contemplates that mediations 

will be conducted by MDRD staff, we 

delegate authority to the MDRD Chief, 

in consultation with the RBAT, to 

modify or waive the procedures or 

requirements of § 1.737 as appropriate 

in this context, or as needed in light of 

the facts or circumstances of a particular 

case. (Waiver is appropriate for ‘‘good 

cause,’’ and is warranted only if both: 

(1) special circumstances warrant a 

deviation from the general rule, and (2) 

such deviation will serve the public 

interest.) The strict confidentiality 

requirements will apply to all written 

and oral communications prepared or 

made for purposes of a mediation 

pursuant to § 1.737(f), including 

mediation submissions, offers of 

compromise, and staff and party 

comments made during the course of 

the mediation (Mediation 

Communications). Through mediation, 

the RBAT will make every effort to 

settle or narrow the issues in dispute as 

expeditiously as possible. 

17. In the event that the parties are 

unable to settle their dispute, and a 

prospective complainant seeks 

placement of its complaint on the 

Accelerated Docket, the RBAT will 

decide whether the complaint or a 

portion of the complaint is suitable for 

inclusion on the Accelerated Docket 

based on the totality of the criteria set 

forth below. Because of the very short 

deadlines that apply in Accelerated 

Docket proceedings, Commission staff 

historically have carefully evaluated 

whether a particular dispute is 

appropriate for expedited disposition, 

resulting in the placement of relatively 

few cases on the Accelerated Docket. In 

evaluating whether a matter is suitable 

for expedited disposition, the RBAT 

must similarly be mindful of the due 

process concerns raised by commenters, 

such as the Pennsylvania PUC, 

regarding affording parties ‘‘the 

opportunity to be heard at a meaningful 

time and in a meaningful manner.’’ In 

addition, although mediation is 

generally voluntary, the RBAT may 

require that the parties participate, if 

appropriate, in pre-filing settlement 

negotiations or mediation under rule 

1.737 as a condition for including a 

matter on the Accelerated Docket. 

Finally, if the RBAT determines that a 

matter is suitable for inclusion on the 

Accelerated Docket, the RBAT is 

authorized to send appropriate matters 

to the Commission’s Administrative 

Law Judge (ALJ) for an expedited 

‘‘minitrial’’ (i.e., trial-type hearing) as 

contemplated by § 1.736(h). 

18. Criteria for Placement on the 

Accelerated Docket. The Commission 

sought comment in the Second FNPRM 

on the adoption of specific criteria to 

guide Commission staff on ‘‘when pole 

attachment complaints should be placed 

on the Accelerated Docket.’’ (For 

example, the Commission asked if its 

policy should ‘‘take into account the 

number and complexity of the claims, 

need for discovery, need for expert 

affidavits, and ability of the parties to 

stipulate to facts.’’) Based on the 

requests of several commenters for 

greater predictability surrounding 

Accelerated Docket placement decisions 

with respect to pole attachment disputes 

that impede or delay broadband 

deployment, we establish criteria to aid 

the RBAT in making determinations 

regarding the placement of such matters 

on the Accelerated Docket. 

19. In light of the strict time 

constraints that apply in Accelerated 

Docket cases, we decline to adopt a 

‘‘presumption,’’ as suggested by some 

commenters, that all pole access 

disputes for active deployments be 

placed on the Accelerated Docket and, 

instead, entrust the RBAT with this 

decision based on the criteria specified 

below. (There is no basis for us to 

conclude that a dispute will be suitable 

for the Accelerated Docket simply based 

on the number of poles at issue as 

INCOMPAS’s proposal suggests.) We 

agree with Dominion/Xcel that a ‘‘onesize-fits-all policy’’ would not 

adequately take into account the 

complexity of the issues in particular 

complaint proceedings. We also agree 

with the Coalition of Concerned 

Utilities that the 60-day timeframe will 

be ‘‘too short’’ to resolve certain pole 

attachment disputes, and thus ‘‘blanket 

imposition’’ of the Accelerated Docket 

requirements would be unreasonable 

and ‘‘raise due process concerns’’ for 

utilities. Although Charter argues that 

the presumption could simply be 

rebutted if a particular complaint raises 

unusually complex issues, we reject this 

argument based on our experience with 

formal complaints. In particular, when 

parties oppose the operation of a 

presumption in a particular proceeding, 

these rebuttal efforts often lead to 

significant additional argumentation 

attendant to resolving the specific 

question of the presumption, thus 

unnecessarily complicating resolution 

of the underlying issues in dispute. To 

avoid the potential for unnecessary 

rounds of argumentation and to ensure 

that complaints accepted onto the 

Accelerated Docket are suitable for 

decision under the relevant time 

constraints, we reject proposals to create 

a presumption that all pole access 

disputes for active deployments be 

placed on the Accelerated Docket. 

20. After careful consideration of the 

record on this issue, we direct the RBAT 

to consider the factors below in 

determining whether to accept onto the 

Accelerated Docket a pole attachment 

dispute that is allegedly impeding or 

delaying a broadband facilities 

deployment plan or project. The RBAT 

shall determine eligibility for placement 

on the Accelerated Docket based on the 

totality of these factors: 


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• whether the prospective 

complainant states a claim for violation 

of the Act or a Commission rule or order 

that falls within the Commission’s 

jurisdiction; 

• whether the expedited resolution of 

a particular dispute or category of 

disputes appears likely to advance the 

deployment of broadband facilities, 

especially in an unserved or 

underserved area; 

• whether the parties to the dispute 

have exhausted all reasonable 

opportunities for settlement during any 

staff-supervised mediation; 

• the number and complexity of the 

issues in dispute; 

• whether the dispute raises new or 

novel issues versus settled 

interpretations of rules or policies; 

• the likely need for, and complexity 

of, discovery; 

• the likely need for expert testimony; 

• the ability of the parties to stipulate 

to facts; 

• whether the parties have already 

assembled relevant evidence bearing on 

the disputed facts; 

• the willingness of the prospective 

complainant to seek a ruling on a subset 

of claims or issues (e.g., threshold or 

‘‘test cases’’); and 

• such other factors as the RBAT, 

within its discretion, may deem 

appropriate and conducive to the 

prompt and fair adjudication of the 

complaint proceeding. 

The first three of these criteria will 

help the RBAT to ensure appropriate 

use of the Commission’s processes in 

support of the goal of timely broadband 

deployment and ensure that the parties 

have made a sufficient effort to resolve 

or, at a minimum, identify and narrow 

the disputed issues prior to filing a 

complaint. The remaining criteria will 

help the RBAT to determine if a dispute 

is suitable for decision under the strict 

time constraints of the Accelerated 

Docket, and also require it to consider 

whether including a matter on the 

Accelerated Docket would ensure the 

prompt and fair adjudication of the 

dispute. (A responding party’s refusal to 

stipulate to facts or cooperate in the 

exchange of relevant information 

bearing on disputed facts will not itself 

defeat a request for acceptance of a pole 

attachment dispute on the Accelerated 

Docket.) By specifying the criteria that 

the RBAT must consider in making its 

determination, we hope to make the 

Accelerated Docket a more useful tool in 

the resolution of eligible pole 

attachment disputes and provide 

prospective complainants with greater 

certainty regarding which complaints 

will be deemed suitable for expedited 

resolution. 

21. We will closely monitor the 

impact of the dispute resolution 

procedures adopted here and consider 

additional streamlining measures 

should we observe ongoing delay tactics 

or other unreasonable practices that 

hinder the ability of broadband 

providers to deploy new services or 

facilities. (Two commenters suggest 

narrowing the list of criteria to avoid 

delay tactics by utilities. We find that 

eliminating criteria is unnecessary, 

however, as these criteria are holistic in 

nature, and no single one will be 

dispositive. Moreover, the RBAT is not 

required to credulously accept 

assertions from either party.) 

B. Increasing Transparency by Providing 

Attachers With Utility Pole Inspection 

Information 

22. We next amend our pole 

attachment make-ready rules to require 

utilities to provide to potential 

attachers, upon request, the information 

contained in their most recent cyclical 

pole inspection reports, or any 

intervening, periodic reports created 

before the next cyclical inspection, for 

the poles covered by a submitted 

attachment application, including 

whether any of the affected poles have 

been ‘‘red tagged’’ by the utility for 

replacement, and the scheduled 

replacement date or timeframe (if any). 

(The record demonstrates that utilities 

conduct inspections of their poles on a 

multi-year cycle, either as part of 

normal network management or as 

required by state law.) In the Second 

FNPRM, the Commission sought 

comment on requiring utilities to 

provide more information about their 

poles to prospective attachers, in order 

to reduce disputes. (Utilities did not 

challenge the Commission’s general 

jurisdiction to require them to provide 

relevant information to prospective 

attachers, and ACA Connects asserted 

the Commission has such authority.) 

Several attaching entities indicated pole 

inspection information would be 

helpful in planning deployments. (This 

requirement applies only in the states 

that have not certified that they regulate 

pole attachments themselves. To the 

extent such reports may include 

sensitive or confidential network or 

financial information, we rely upon 

utilities and attachers to address the 

issue through redactions or nondisclosure agreements.) We believe this 

new requirement strikes a reasonable 

balance between additional 

transparency for prospective attachers 

and ensuring the utilities’ expenditure 

of resources is no greater than 

necessary. As discussed below, 

however, we also strongly encourage 

utilities to voluntarily share pole-related 

information that is reasonably available 

and that they track in the normal course 

of business, both before and after 

receiving attachment applications, and 

we intend to continue to monitor the 

record in this proceeding to determine 

if additional information sharing 

mandates may be required. 

23. For the purposes of the new 

transparency requirement, a cyclical 

pole inspection report is any report that 

a utility creates in the normal course of 

its business that sets forth the results of 

the routine inspection of its poles 

during the utility’s normal pole 

inspection cycle, while a periodic pole 

inspection report is any report that a 

utility creates in the normal course of its 

business that sets forth the results of the 

inspection of any of its poles outside the 

utility’s normal pole inspection cycle. 

(Electric Utilities request that the new 

rule not require utilities to provide 

periodic pole inspection reports, 

arguing that the requirement will create 

confusion and invite disputes. We find 

that the definition of ‘‘periodic 

inspection report’’ is sufficiently clear 

and note that no other utility 

commenters claimed the definition was 

vague or otherwise problematic. We 

further find that this requirement is an 

important aspect of the rule. Cyclical 

pole inspections typically occur several 

years apart, sometimes by ten or more 

years, and periodic inspection reports 

will contain more recent inspection 

information. We also decline the 

Electric Utilities’ request to seek further 

comment on transparency requirements 

in lieu of adopting a rule on report 

sharing. We find that the record is 

sufficient to adopt an information 

sharing rule at this time and the rule we 

adopt strikes an appropriate balance 

between providing attachers with 

additional helpful information while 

not being overly resource-intensive for 

utilities. Indeed, several utility parties 

are supportive of the new transparency 

requirement.) We note that this new 

transparency requirement is consistent 

with the existing practices of certain 

utilities to prepare such reports. When 

asking for information about the status 

of a utility’s poles for a planned 

buildout, the attacher must submit its 

information request no earlier than 

contemporaneously with an attachment 

application. The utility will have ten 

business days to respond to the request. 

(The utility has the same amount of time 

to determine whether the application is 

complete.) This should allow sufficient 

time before the make-ready survey for 

the attacher to revise or amend its 

application as may be appropriate based 


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on the information it receives. (‘‘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.’’ After 

receiving a complete attachment 

application, a utility conducts a makeready survey and provides a make-ready 

cost estimate to the attacher. During the 

survey stage, ‘‘the pole owner conducts 

an engineering study to determine 

whether and where attachment is 

feasible, and what make-ready is 

required.’’) 

24. We recognize that in some 

situations, the information provided by 

utilities in their pole inspection reports 

may lead new attachers to amend their 

attachment applications. In order to 

ensure that utilities have enough time to 

review such applications, in situations 

when the utility receives an amended 

attachment application prior to granting 

or denying the original application, we 

will allow a utility the option to restart 

the 45-day period for responding to the 

application on the merits and 

conducting the survey. (The option to 

restart the time period also applies to 

larger orders that are subject to a 60-day 

timeframe.) Utilities electing to restart 

the 45-day application review and 

survey period in this manner must 

notify the attacher within 5 business 

days of receipt of the amended 

application or by the 45th day after the 

original application is considered 

complete, whichever is earlier. (For 

example, if an amended application was 

filed on the 42nd day following the 

utility’s determination that the original 

application was complete, the utility 

would only have three days, not five 

business days, to notify the attacher that 

the utility is restarting the 45-day 

application review and survey.) To 

avoid unnecessary delays and costs, we 

strongly encourage attachers to notify 

utilities of their intent to file, and to file, 

amended applications as quickly as 

possible after receiving a pole 

inspection report from the utility. We 

also encourage utilities to exercise their 

right to restart this 45-day period 

judiciously and to review amended 

applications as quickly as possible even 

when electing to restart the 45-day 

application review and survey period. 

(Several parties asked that we require an 

automatic restart of the 45-day response 

period or start the application process 

over in such instances by requiring an 

attacher to file a new application rather 

than an amended application. We 

decline these requests and find that the 

procedures we adopt are sufficiently 

tailored to account for the needs of 

utilities to review amended applications 

while not needlessly slowing 

deployment. Under the new rule, 

utilities will always have the option of 

electing to restart the 45-day review 

period; but given that there may be 

instances where an amendment is minor 

or otherwise will not require a restart of 

the 45-day period, we find it reasonable 

to require utilities to actually review an 

amended application to determine 

whether a restart is necessary given the 

specific circumstances.) Regardless of 

whether the utility elects to restart the 

45-day response period, any additional 

survey costs necessitated by the 

amended application, such as a second 

survey after a survey for the original 

application has been completed, will be 

borne by the new attacher consistent 

with the new attacher’s obligation to 

pay for make-ready costs associated 

with its application. 

25. In connection with the new 

transparency requirement we adopt in 

this final rule, we also require utilities 

to retain copies, in whatever form they 

were created, of any such cyclical or 

periodic pole inspection reports they 

conduct in the normal course of 

business, until such time as the utility 

completes a superseding cyclical pole 

inspection report covering the poles 

included in the attachment application. 

In creating these obligations, we 

reiterate that utilities are required to 

provide only the information they 

already possess and track in the normal 

course of conducting pole inspections at 

the time of the attacher’s request for 

data. The new rule does not require 

utilities to collect or create new 

information for the sole purpose of 

responding to such requests or to 

provide all information they may 

possess on the affected poles outside 

their pole inspection reports. (Edison 

Electric Institute contends that ‘‘access 

to critical infrastructure by non-electric 

company personnel presents serious 

safety, reliability, and homeland 

security hazards,’’ and that ‘‘existing 

law bars electric companies from 

releasing some information about 

system infrastructure.’’ It does not 

directly assert, however, that utilities 

would be barred from disclosing 

information contained in a pole 

inspection report. And it notes that most 

of the information is ‘‘already available’’ 

and an attacher ‘‘can readily learn the 

condition’’ of poles by driving a 

proposed route. Although we do not 

know exactly what information utilities 

may include in their pole inspection 

reports, we anticipate that legal 

constraints on disclosure of critical 

infrastructure information can be 

addressed, to the extent that they arise, 

by the parties involved via appropriate 

redactions or use of a non-disclosure 

agreement. We do not intend our new 

rule to override laws precluding 

disclosure of certain information, but 

expect utilities to work in good faith to 

provide potential attachers with the 

information they can from their pole 

inspection reports.) We find this new 

limited requirement achieves a balance 

between a potential attacher’s need for 

more information about the poles that it 

plans to use as part of a broadband 

buildout and the utility’s interest in 

minimizing the burden of mandatory 

disclosures. 

26. We conclude that requiring 

utilities to provide information about 

the state of their poles to attachers will 

help improve the attachment process 

and potentially reduce disputes. In 

particular, having such information 

early in the process will help attachers 

evaluate whether they want to adjust 

their plans in light of the poles’ 

conditions. At the same time, we 

recognize the potential burdens on 

utilities that would result from 

imposing a mandate to compile 

extensive information for every pole 

attachment application the utility 

receives. We seek to strike a balance by 

(1) requiring utilities to provide such 

information as they already collect in 

the normal course of inspections done 

as part of managing their network and 

poles (which the record indicates 

include which poles have been 

identified as needing replacement), 

rather than having to gather information 

solely for attachers or from many 

disparate sources, and (2) tying requests 

for such information to poles contained 

in submitted attachment applications. 

27. In striking this balance, we agree 

with utilities that they should not be 

required by rule to gather and provide 

extensive pole-related data for every 

pole attachment application about 

matters they do not track in the normal 

course of business through their 

inspections. The record shows that 

many utilities do not create specific 

maintenance or replacement schedules 

for poles. It also shows that some 

utilities provide a range of pole-related 

information—including whether any 

poles are red-tagged or otherwise 

identified for replacement—when 

responding to an attachment application 

after conducting a make-ready survey. 

We agree with the commenters asserting 

that a pre-application survey conducted 

by the attacher, or a make-ready survey 

conducted by a utility in response to a 

specific attachment application, are 

often the best ways to ensure the 

potential attacher and utility have up-toVerDate Sep<11>2014 15:08 Jan 11, 2024 Jkt 262001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\12JAR1.SGM 12JAR1

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date, accurate information on the 

current state of poles. (We recognize 

that a visual inspection may not 

necessarily provide all the information 

an attacher might desire. This supports 

requiring disclosure of pole inspection 

reports.) We also agree with Dominion/ 

Xcel, however, that the information 

contained in general survey or pole 

inspection reports can be useful to 

prospective attachers in some cases. 

Therefore, although we decline at this 

time to impose broader duties on 

utilities to collect and provide more 

expansive pole-related information for 

every attachment application, we will 

require utilities to furnish already 

available information in pole inspection 

reports concerning specific poles upon 

request at the time an attachment 

application is submitted. (Some 

commenters support the balance struck 

in this new rule. Electric Utilities, on 

the other hand, request that any 

consideration of a rule to require 

disclosure of pole inspection reports be 

deferred to a further notice of proposed 

rulemaking.) 

28. While we do not at this time 

codify a requirement for utilities to 

provide new attachers with information 

about poles prior to the attacher 

submitting a pole attachment 

application, as requested by some 

commenters, we understand that often 

utilities share pole information with 

attachers prior to the application 

process, particularly information not 

easily attained through visual 

inspection. We strongly encourage this 

pre-application collaboration and 

cooperation because there is value for 

both utilities and attachers in having the 

best available pole information to 

inform deployment forecasts and 

attachment requests. Although we 

recognize that some potential attachers 

could benefit from obtaining polerelated information prior to submitting 

an application, we decline to impose 

this requirement on utilities given that 

the underlying requests for information 

would be for preliminary build-out 

plans that may substantially change. 

Furthermore, establishing a preapplication duty for utilities would 

require the Commission to create a new 

process and timeline prior to the 

codified make-ready process, which has 

always been triggered by the filing of an 

application. Finally, given that 

prospective attachers also have the 

ability to gather information about poles 

on prospective routes through preapplication surveys and visual 

inspection of poles on a prospective 

route, we find that imposing an 

additional pre-application requirement 

on utilities is not justified at this time. 

(Through such visual inspection, an 

attacher typically can learn the age of a 

pole, whether it has been red tagged, 

when the most recent inspection 

occurred, and a pole’s load and 

potential suitability for more 

attachments. As noted above, however, 

we also recognize that visual inspection 

alone may not always provide all the 

information an attacher may desire, thus 

supporting the new requirement that 

utilities provide attachers with cyclical 

and periodic pole inspection reports. 

For example, with regard to utility tags 

on poles, Crown Castle asserts that ‘‘not 

all poles are appropriately tagged or 

inspection tags may be missing, 

damaged, or unable to be interpreted 

without additional information from the 

pole owner.’’) 

29. We reject requests at this time that 

we mandate a variety of other disclosure 

requirements on utilities. (Several 

attachers requested that utilities be 

required to provide any relevant 

requested information about their poles 

that they retain in the ordinary course 

of business, which would go beyond 

pole inspection reports. While we 

encourage parties to voluntarily share 

information, we find that codifying a 

broad disclosure requirement for all 

information collected in the ordinary 

course of business could force utilities 

to expend significant resources to gather 

such information and could lead to 

additional disputes and complaints 

related to information sharing.) We 

agree with utilities that the most 

relevant information for purposes of an 

attachment request is whether the poles 

at issue are available or due for 

replacement. (Some utilities suspect 

that the purpose of many of the 

attachers’ requests is only to provide 

ammunition for rate disputes with 

utilities, not to improve the attachment 

process.) For example, some attacher 

commenters ask the Commission to 

require utilities to create accessible 

databases (or establish a single database 

for all utilities) with information on 

things like pole age, condition, repair/ 

replacement schedules, location, 

number of attachments, standard rate 

structure, and applicable engineering 

standards. They also ask that utilities be 

required to provide data from the 

owners’ periodic load analyses for 

poles; the age, height, class, and 

condition of poles; and data on current 

attachments and pending attachment 

requests for relevant poles. And ACA 

Connects asks the Commission to 

require utilities to provide more details 

in their make-ready cost estimates to 

support those costs. For the reasons 

discussed below, we decline to adopt 

these requirements. With respect to 

certain financial information requested 

by some commenters regarding pole 

rates, we do not adopt new disclosure 

requirements, but make clear that some 

financial information is already required 

to be disclosed under our rules. 

30. Before addressing these specific 

proposals, however, we note some 

attachers express concern that, by 

adopting a requirement to provide pole 

inspection reports but not codifying 

additional mandates, we may be 

inadvertently discouraging utilities from 

voluntarily providing pole-related 

information before receiving an 

attachment application, which at least 

some utilities do today. We stress that 

our actions in this final rule should not 

be understood to undermine or 

disincentivize such voluntary sharing. 

To the contrary, voluntary sharing of 

pole-related information is consistent 

with longstanding Commission policy 

favoring transparency in the pole 

attachment context, and we strongly 

encourage both utilities and attachers to 

collaborate and voluntarily share 

information with each other whenever 

such information is reasonably available 

and obtained in the normal course of 

business. (We reject claims that our 

actions here are inconsistent with the 

policy of promoting transparency, as 

Crown Castle asserts. To the contrary, 

this Order increases transparency by 

adopting a new disclosure requirement.) 

Voluntary sharing can be helpful to both 

attachers and utilities to promote more 

efficient buildouts by informing 

deployment forecasts, allowing more 

accurate applications, and decreasing 

disputes or delays after an application is 

submitted. (Such voluntary sharing also 

is helpful because ‘‘not all pole owners 

conduct these denominated 

inspections,’’ yet attachers still could 

benefit from receiving the kind of 

information that would have been 

included in such inspections had they 

occurred.) Having better and more 

accurate information prior to attachment 

applications will likely reduce makeready costs, the frequency and severity 

of disputes, and improve the efficiency 

of the attachment process—benefiting 

both attachers and utilities. We will 

continue to monitor the record in this 

proceeding and will take further action 

if it becomes clear that voluntary 

information sharing arrangements are 

insufficiently promoting broadband 

deployment. 

31. Database(s) of Pole Information. 

We decline (1) to require that each 

utility create an accessible database 

with an array of data on all its poles, or 

(2) to establish a single pole-information 


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database for all utilities. The 

Commission rejected previous calls for 

a similar database requirement in 2011, 

in part based on the large burden 

outweighing potential benefits. We find 

that the 2011 reasoning remains valid. 

In particular, we find that the record 

continues to demonstrate that the 

burdens and costs of creating such a 

database (if a utility does not already 

have one) would be very large given the 

number of poles many utilities own or 

jointly own and the scope of pole data 

attachers seek, and that the alleged 

benefits of requiring such a database 

would be reduced by the new 

requirement we adopt in this final rule 

that utilities provide information from 

their pole inspection reports. 

Commenters contend that requiring 

such a pole-related database would help 

speed deployment by helping attachers 

plan better and avoid intermediate steps 

for both attachers and utilities. Utilities, 

however, assert that due to the very 

large number of poles they own or coown and the ever-changing nature of 

pole networks, maintaining a fully upto-date database would be almost 

impossible, and so the information for 

any given group of poles in a database 

could easily be out of date when the 

attacher needs it. One utility also 

submits that granting access to such 

voluminous pole information could 

result in the submission of incorrect 

applications. We find that the benefits 

of a database requirement remain 

speculative at best given how difficult it 

would be to keep such a large database 

up-to-date. 

32. While some commenters argue 

that circumstances have changed since 

2011, with some state utility 

commissions adopting database 

requirements for pole-related 

information, the states cited by these 

commenters are limited and, in any 

event, all regulate pole attachments at 

the state level pursuant to section 224(c) 

of the Act. As a result, compliance with 

pre-existing state-specific database 

requirements would likely offer little, if 

any, relief in complying with a newly 

imposed Federal database requirement. 

To the extent any utilities may have 

developed pole-related databases in 

states that do not regulate pole 

attachments, the record indicates that 

attachers are interested in specific types 

of data, not merely access to existing 

databases, which would require utilities 

to absorb additional, and potentially 

substantial, costs of either adding 

specific types of new data or searching 

databases for specific data of interest to 

attachers. (ACA Connects asserts that 

many utilities have developed polerelated databases since 2011, but it does 

not identify utilities that have done so 

in states that do not regulate pole 

attachments.) Again, we agree with the 

utilities that the value of such database 

information to attachers is highly 

unlikely to outweigh those burdens, as 

the information may well be out of date 

by the time an attacher submits an 

attachment request. Moreover, any 

added benefit would likely be minimal 

in light of the new information-sharing 

requirement we adopt in this final rule. 

33. Loading Studies. According to 

NCTA, some utilities provide and allow 

attachers to rely on loading studies 

included in the utilities’ cyclical pole 

inspection reports rather than making 

the attacher do its own loading study, 

but other utilities do not. NCTA asserts 

that ‘‘[w]here such studies have been 

conducted, pole owners should be 

required to use that existing analysis 

rather than forcing a new attacher to 

incur the expense and delay of 

performing a duplicative and redundant 

study.’’ We decline to adopt this 

proposal. To the extent pole inspection 

reports include loading studies, 

attachers will have access to such 

information under the new rule we 

adopt in this final rule. (In cases where 

the loading study is not part of the 

inspection report, we decline, at this 

time, to codify a requirement for a 

utility to provide an attacher with a 

loading study as NCTA requests, but 

strongly encourage utilities to provide 

such loading studies when reasonably 

requested and readily available.) We 

will not, however, dictate when a utility 

can require a loading study, as NCTA 

seems to request, as we continue to 

believe, consistent with the 2018 

Wireline Infrastructure Order, that such 

studies ‘‘can be important tools to 

address safety, reliability, and 

engineering concerns.’’ (NCTA also 

asserts that a utility should have to bear 

the cost of a loading analysis where 

none has been performed but the utility 

believes a study is necessary before 

allowing an attachment, and that 

utilities can instead recover the costs of 

such loading studies through annual 

attachment rental fees. As that issue 

relates to cost recovery rather than 

transparency, we do not address it here.) 

34. Age, Height, Class, and Condition 

of Poles. We reject attachers’ request to 

require utilities to provide data on the 

age, height, class, and condition of their 

poles, or the last date the pole was 

inspected, make-ready was conducted, 

or a pre-existing violation on the pole 

was fixed. The utilities state that they 

either routinely provide this type of data 

with make-ready estimates, that the 

information is accessible to attachers 

through their own pre-application 

surveys or when the attacher 

accompanies the utility on a make-ready 

survey, or that they do not track this 

data. To the extent utilities’ pole 

inspection reports include such data, 

that information would be covered by 

the new transparency requirement we 

adopt in this final rule and available to 

attachers upon request after an 

application is filed. Given that attachers 

can often obtain this information either 

from the utility or through their own 

survey or inspection, we reject any 

additional requirement for pole 

condition information beyond that 

which we have already outlined, but we 

strongly encourage utilities to share this 

information when it is readily available 

and collected in the normal course of 

business. 

35. Existing Attachments and Pending 

Attachment Requests. We also decline 

to require that utilities provide data on 

the number of attachments or pending 

attachment applications for each pole 

covered by an attachment request. As 

the utilities explain, pole networks are 

dynamic and pole conditions frequently 

change. We find that the record 

sufficiently demonstrates that 

attempting to keep a fully up-to-date list 

of the number of attachments or 

pending applications on every pole 

would be a very time-consuming and 

expensive proposition. (Some attachers 

also sought to require pole owners to 

produce information on utility 

transformers or voltage on a pole or the 

total attachment load on the pole, but 

utilities either deny the usefulness of 

such information or state that they do 

not track it.) Even if some utilities track 

this information, requiring them to 

compile the information and send it 

across a vast and shifting landscape of 

attachers and poles—and to keep that 

information updated—would be a 

considerable burden. Although attachers 

assert there would be some value in 

having this kind of data earlier, even if 

it is old, we find that, as with the 

proposed pole attachment database 

discussed above, any purported benefit 

is outweighed by the potentially 

considerable cost utilities would have to 

bear in complying with such a 

requirement. 

36. Data Supporting Make-Ready 

Estimates. With regard to the request 

that utilities be required to provide 

more detailed supporting data in their 

make-ready estimates, particularly 

regarding the utility’s costs, we again 

decline to adopt any new requirement. 

Current rules already require utilities to 

provide supporting cost details in their 

make-ready cost estimates. If utilities 

are not complying with those rules, 


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attachers remain free to invoke the 

complaint process or seek mediation. 

37. Financial Records Regarding 

Poles. We decline attachers’ requests to 

create new obligations requiring utilities 

to provide additional financial data 

regarding poles and attachment rates, 

including outside plant records (also 

called continuing property records) as 

part of the rules being adopted at this 

time. (Continuing Property Records are 

‘‘[o]utside plant records relevant to 

poles,’’ typically ‘‘including a detailed 

accounting of the units associated with 

accounts used to report pole plant 

investment such as vintage height, class, 

etc.’’ Several attachers repeated these 

requests in later submissions, asking 

that utilities be required to disclose a 

range of information related to rates, 

rather than only the information the 

utility relied on in computing rates, to 

enable attachers to, for example, 

evaluate the validity of utilities’ reliance 

on presumptions in the pole attachment 

rate formula.) Attachers argue that such 

a duty for utilities to provide 

information will reduce rate disputes or 

make them easier to resolve. Our focus 

here, however, is on deployment rather 

than rate disputes. Further, § 1.1404(e) 

and (f) of the Commission’s rules— 

which we do not alter here—already 

require that pole owners, upon request 

of a cable operator or 

telecommunications carrier, provide the 

information they have relied on in 

calculating rates, and information an 

attacher seeks to rely on in establishing 

that a rate, term, or condition is not just 

and reasonable. The Commission has 

explained that ‘‘it is critical that 

attaching entities have this information 

well in advance of executive-level 

discussions to ensure that those precomplaint negotiations have a chance of 

success.’’ (NCTA contends the former 

language in § 1.1404(g) was 

inadvertently removed in a prior rule 

revision. We disagree. The Commission 

sought to ‘‘streamline the rules in [§ ] 

1.1404’’ by removing the long list of 

information specified in that section but 

did not narrow the scope of information 

utilities must provide attachers. In light 

of these existing rules and the policy 

stated by the Commission in 2018, to 

the extent an attacher has a specific 

dispute with a utility, it already can 

seek and obtain certain financial data 

from the utility, prior to filing a 

complaint, under current rules.) We 

therefore decline to impose a new, 

broader duty to disclose additional 

financial records related to poles. 

(USTelecom, whose members include 

both pole owners and attachers, argues 

that imposing a duty beyond current 

law ‘‘would not accelerate broadband 

deployment or reduce its costs, but 

would likely have the opposite effect by 

diverting broadband providers’ capital 

away from their own broadband 

deployment to subsidize their 

competitors’ builds.’’) 

IV. Final Regulatory Flexibility 

Analysis 

38. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated into 

the Second FNPRM. The Commission 

sought written public comment on the 

proposals in the Second FNPRM, 

including comment on the IRFA. No 

comments were filed addressing the 

IRFA. This present Final Regulatory 

Flexibility Analysis (FRFA) conforms to 

the RFA. 

A. Need for, and Objectives of, the 

Fourth Report and Order 

39. In the Fourth Report and Order, 

the Commission adopts rules and policy 

changes that will make the pole 

attachment process faster and cheaper, 

particularly when poles have to be 

replaced during broadband buildouts. In 

the last five years, the Commission took 

significant steps in setting standards for 

the discussions between utilities and 

telecommunications companies about 

the timing and cost of attaching 

broadband equipment to utility poles, 

with the backstop of a robust complaint 

process when parties cannot agree on 

the rates, terms, and conditions for pole 

attachments. In the Fourth Report and 

Order, we adopt rules (1) establishing a 

new process for the Commission’s 

review and assessment of pole 

attachment disputes that impede or 

delay broadband deployment in order to 

expedite resolution of such disputes, 

and (2) providing telecommunications 

companies with information about the 

status of the utility poles they plan to 

use as they map out their broadband 

builds. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

40. There were no comments raised 

that specifically addressed the proposed 

rules and policies presented in the 

Second FNPRM IRFA. Nonetheless, the 

Commission considered the potential 

impact of the rules proposed in the 

IRFA on small entities and took steps 

where appropriate and feasible to 

reduce the compliance burden for small 

entities in order to reduce the economic 

impact of the rules enacted herein on 

such entities. 

C. Response to Comments by the Chief 

Counsel for Advocacy of the Small 

Business Administration 

41. Pursuant to the Small Business 

Jobs Act of 2010, which amended the 

RFA, the Commission is required to 

respond to any comments filed by the 

Chief Counsel for Advocacy of the Small 

Business Administration (SBA), and to 

provide a detailed statement of any 

change made to the proposed rules as a 

result of those comments. The Chief 

Counsel did not file any comments in 

response to the proposed rules in this 

proceeding. 

D. Description and Estimate of the 

Number of Small Entities to Which 

Rules Will Apply 

42. The RFA directs agencies to 

provide a description of, and where 

feasible, an estimate of the number of 

small entities that may be affected by 

the rules adopted herein. 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. (Pursuant 

to 5 U.S.C. 601(3), the statutory 

definition of a small business applies 

unless an agency, after consultation 

with the Office of Advocacy of the 

Small Business Administration and after 

opportunity for public comment, 

establishes one or more definitions of 

such term which are appropriate to the 

activities of the agency and publishes 

such definition(s) in the Federal 

Register.) 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. 

43. 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, at the outset, three 

broad groups of small entities 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 33.2 million businesses. 


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44. 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. The Internal Revenue Service 

(IRS) uses a revenue benchmark of 

$50,000 or less to delineate its annual 

electronic filing requirements for small 

exempt organizations. (The IRS 

benchmark is similar to the population 

of less than 50,000 benchmark in 5 

U.S.C. 601(5) that is used to define a 

small governmental jurisdiction. 

Therefore, the IRS benchmark has been 

used to estimate the number of small 

organizations in this small entity 

description. We note that the IRS data 

does not provide information on 

whether a small exempt organization is 

independently owned and operated or 

dominant in its field.) Nationwide, for 

tax year 2020, there were approximately 

447,689 small exempt organizations in 

the U.S. reporting revenues of $50,000 

or less according to the registration and 

tax data for exempt organizations 

available from the IRS. (The IRS Exempt 

Organization Business Master File (E.O. 

BMF) Extract provides information on 

all registered tax-exempt/non-profit 

organizations. The data utilized for 

purposes of this description was 

extracted from the IRS E.O. BMF data 

for businesses for the tax year 2020 with 

revenue less than or equal to $50,000 for 

Region 1—Northeast Area (58,577), 

Region 2—Mid-Atlantic and Great Lakes 

Areas (175,272), and Region 3—Gulf 

Coast and Pacific Coast Areas (213,840) 

that includes the continental U.S., 

Alaska, and Hawaii. This data does not 

include information for Puerto Rico.) 

45. 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 2017 Census of Governments 

indicate there were 90,075 local 

governmental jurisdictions consisting of 

general purpose governments and 

special purpose governments in the 

United States. (The Census of 

Governments survey is conducted every 

five (5) years compiling data for years 

ending with ‘‘2’’ and ‘‘7’’.) (Local 

governmental jurisdictions are made up 

of general purpose governments 

(county, municipal, and town or 

township) and special purpose 

governments (special districts and 

independent school districts).) Of this 

number, there were 36,931 general 

purpose governments (2,105 county, 

18,729 municipal, and 16,097 town and 

township governments) with 

populations of less than 50,000 and 

12,040 special purpose governments 

(independent school districts) with 

enrollment populations of less than 

50,000. (While the special purpose 

governments category also includes 

local special district governments, the 

2017 Census of Governments data does 

not provide data aggregated based on 

population size for the special purpose 

governments category. Therefore, only 

data from independent school districts 

is included in the special purpose 

governments category.) Accordingly, 

based on the 2017 U.S. Census of 

Governments data, we estimate that at 

least 48,971 entities fall into the 

category of ‘‘small governmental 

jurisdictions.’’ (This total is derived 

from the sum of the number of general 

purpose governments (county, 

municipal and town or township) with 

populations of less than 50,000 (36,931) 

and the number of special purpose 

governments—independent school 

districts with enrollment populations of 

less than 50,000 (12,040), from the 2017 

Census of Governments—Organizations 

tbls. 5, 6 & 10.) 

1. Internet Access Service Providers 

46. Wired Broadband internet Access 

Service Providers (Wired ISPs). 

(Formerly included in the scope of the 

Internet Service Providers (Broadband), 

Wired Telecommunications Carriers and 

All Other Telecommunications small 

entity industry descriptions.) Providers 

of wired broadband internet access 

service include various types of 

providers except dial-up internet access 

providers. Wireline service that 

terminates at an end user location or 

mobile device and enables the end user 

to receive information from and/or send 

information to the internet at 

information transfer rates exceeding 200 

kilobits per second (kbps) in at least one 

direction is classified as a broadband 

connection under the Commission’s 

rules. Wired broadband internet services 

fall in the Wired Telecommunications 

Carriers industry. The SBA small 

business size standard for this industry 

classifies firms having 1,500 or fewer 

employees as small. U.S. Census Bureau 

data for 2017 show that there were 3,054 

firms that operated in this industry for 

the entire year. Of this number, 2,964 

firms operated with fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) 

47. Additionally, according to 

Commission data on internet access 

services as of June 30, 2019, nationwide 

there were approximately 2,747 

providers of connections over 200 kbps 

in at least one direction using various 

wireline technologies. (The technologies 

used by providers include asymmetric 

and symmetric digital subscriber line 

(aDSL and sDSL) (collectively xDSL), 

Other Wireline, Cable Modem, and fiber 

to the premises (FTTP).) Other wireline 

includes: all copper-wire based 

technologies other than xDSL (such as 

Ethernet over copper, T–1/DS–1 and T3/ 

DS–1) as well as power line 

technologies which are included in this 

category to maintain the confidentiality 

of the providers.) The Commission does 

not collect data on the number of 

employees for providers of these 

services, therefore, at this time we are 

not able to estimate the number of 

providers that would qualify as small 

under the SBA’s small business size 

standard. However, in light of the 

general data on fixed technology service 

providers in the Commission’s 2022 

Communications Marketplace Report, 

we believe that the majority of wireline 

internet access service providers can be 

considered small entities. 

48. Internet Service Providers (NonBroadband). Internet access service 

providers using client-supplied 

telecommunications connections (e.g., 

dial-up ISPs) as well as voice over 

internet protocol (VoIP) service 

providers using client-supplied 

telecommunications connections fall in 

the industry classification of All Other 

Telecommunications. The SBA small 

business size standard for this industry 

classifies firms with annual receipts of 

$35 million or less as small. For this 

industry, U.S. Census Bureau data for 

2017 show that there were 1,079 firms 

in this industry that operated for the 

entire year. Of those firms, 1,039 had 

revenue of less than $25 million. (The 

available U.S. Census Bureau data does 

not provide a more precise estimate of 

the number of firms that meet the SBA 

size standard. We also note that 

according to the U.S. Census Bureau 

glossary, the terms receipts and 

revenues are used interchangeably.) 

Consequently, under the SBA size 

standard a majority of firms in this 

industry can be considered small. 

2. Wireline Providers 

49. 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 


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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. 

Wired Telecommunications Carriers are 

also referred to as wireline carriers or 

fixed local service providers. (Fixed 

Local Service Providers include the 

following types of providers: Incumbent 

Local Exchange Carriers (ILECs), 

Competitive Access Providers (CAPs) 

and Competitive Local Exchange 

Carriers (CLECs), Cable/Coax CLECs, 

Interconnected VOIP Providers, NonInterconnected VOIP Providers, SharedTenant Service Providers, Audio Bridge 

Service Providers, and Other Local 

Service Providers. Local Resellers fall 

into another U.S. Census Bureau 

industry group and therefore data for 

these providers is not included in this 

industry.) 

50. The SBA small business size 

standard for Wired Telecommunications 

Carriers classifies firms having 1,500 or 

fewer employees as small. U.S. Census 

Bureau data for 2017 show that there 

were 3,054 firms that operated in this 

industry for the entire year. Of this 

number, 2,964 firms operated with 

fewer than 250 employees. (The 

available U.S. Census Bureau data does 

not provide a more precise estimate of 

the number of firms that meet the SBA 

size standard.) Additionally, based on 

Commission data in the 2022 Universal 

Service Monitoring Report, as of 

December 31, 2021, there were 4,590 

providers that reported they were 

engaged in the provision of fixed local 

services. Of these providers, the 

Commission estimates that 4,146 

providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

51. Local Exchange Carriers (LECs). 

Neither the Commission nor the SBA 

has developed a size standard for small 

businesses specifically applicable to 

local exchange services. Providers of 

these services include both incumbent 

and competitive local exchange service 

providers. Wired Telecommunications 

Carriers is the closest industry with an 

SBA small business size standard. 

Wired Telecommunications Carriers are 

also referred to as wireline carriers or 

fixed local service providers. (Fixed 

Local Exchange Service Providers 

include the following types of 

providers: Incumbent Local Exchange 

Carriers (ILECs), Competitive Access 

Providers (CAPs) and Competitive Local 

Exchange Carriers (CLECs), Cable/Coax 

CLECs, Interconnected VOIP Providers, 

Non-Interconnected VOIP Providers, 

Shared Tenant Service Providers, Audio 

Bridge Service Providers, Local 

Resellers, and Other Local Service 

Providers.) The SBA small business size 

standard for Wired Telecommunications 

Carriers classifies firms having 1,500 or 

fewer employees as small. U.S. Census 

Bureau data for 2017 show that there 

were 3,054 firms that operated in this 

industry for the entire year. Of this 

number, 2,964 firms operated with 

fewer than 250 employees. (The 

available U.S. Census Bureau data does 

not provide a more precise estimate of 

the number of firms that meet the SBA 

size standard.) Additionally, based on 

Commission data in the 2022 Universal 

Service Monitoring Report, as of 

December 31, 2021, there were 4,590 

providers that reported they were fixed 

local exchange service providers. Of 

these providers, the Commission 

estimates that 4,146 providers have 

1,500 or fewer employees. 

Consequently, using the SBA’s small 

business size standard, most of these 

providers can be considered small 

entities. 

52. Incumbent Local Exchange 

Carriers (Incumbent LECs). Neither the 

Commission nor the SBA have 

developed a small business size 

standard specifically for incumbent 

local exchange carriers. Wired 

Telecommunications Carriers is the 

closest industry with an SBA small 

business size standard. The SBA small 

business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 1,212 providers that 

reported they were incumbent local 

exchange service providers. Of these 

providers, the Commission estimates 

that 916 providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, the 

Commission estimates that the majority 

of incumbent local exchange carriers 

can be considered small entities. 

53. Competitive Local Exchange 

Carriers (LECs). Neither the Commission 

nor the SBA has developed a size 

standard for small businesses 

specifically applicable to local exchange 

services. Providers of these services 

include several types of competitive 

local exchange service providers. 

(Competitive Local Exchange Service 

Providers include the following types of 

providers: Competitive Access Providers 

(CAPs) and Competitive Local Exchange 

Carriers (CLECs), Cable/Coax CLECs, 

Interconnected VOIP Providers, NonInterconnected VOIP Providers, Shared 

Tenant Service Providers, Audio Bridge 

Service Providers, Local Resellers, and 

Other Local Service Providers.) Wired 

Telecommunications Carriers is the 

closest industry with an SBA small 

business size standard. The SBA small 

business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

that operated in this industry for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 3,378 providers that 

reported they were competitive local 

exchange service providers. Of these 

providers, the Commission estimates 

that 3,230 providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

54. Interexchange Carriers (IXCs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for Interexchange 

Carriers. Wired Telecommunications 

Carriers is the closest industry with an 

SBA small business size standard. The 

SBA small business size standard for 

Wired Telecommunications Carriers 

classifies firms having 1,500 or fewer 

employees as small. U.S. Census Bureau 

data for 2017 show that there were 3,054 

firms that operated in this industry for 

the entire year. Of this number, 2,964 

firms operated with fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 


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2021, there were 127 providers that 

reported they were engaged in the 

provision of interexchange services. Of 

these providers, the Commission 

estimates that 109 providers have 1,500 

or fewer employees. Consequently, 

using the SBA’s small business size 

standard, the Commission estimates that 

the majority of providers in this 

industry can be considered small 

entities. 

55. Operator Service Providers (OSPs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for operator 

service providers. The closest applicable 

industry with an SBA small business 

size standard is Wired 

Telecommunications Carriers. The SBA 

small business size standard classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 20 providers that 

reported they were engaged in the 

provision of operator services. Of these 

providers, the Commission estimates 

that all 20 providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, all 

of these providers can be considered 

small entities. 

56. Other Toll Carriers. Neither the 

Commission nor the SBA has developed 

a definition for small businesses 

specifically 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. Wired 

Telecommunications Carriers is the 

closest industry with an SBA small 

business size standard. The SBA small 

business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 90 providers that 

reported they were engaged in the 

provision of other toll services. Of these 

providers, the Commission estimates 

that 87 providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

3. Wireless Providers—Fixed and 

Mobile 

57. The broadband internet access 

service provider category covered by 

these new rules may cover multiple 

wireless firms and categories of 

regulated wireless services. (This 

includes, among others, the 

approximately 800 members of the 

Wireless internet Service Providers 

Association (WISPA), including those 

entities who provide fixed wireless 

broadband service using unlicensed 

spectrum. We also consider the impact 

to these entities for the purposes of this 

FRFA, by including them under the 

‘‘Wireless Providers—Fixed and 

Mobile’’ category.) Thus, to the extent 

the wireless services listed below are 

used by wireless firms for broadband 

internet access service, the actions may 

have an impact on those small 

businesses as set forth above and further 

below. In addition, for those services 

subject to auctions, we note that, as a 

general matter, the number of winning 

bidders that claim to qualify as small 

businesses at the close of an auction 

does not necessarily represent the 

number of small businesses currently in 

service. Also, the Commission does not 

generally track subsequent business size 

unless, in the context of assignments 

and transfers or reportable eligibility 

events, unjust enrichment issues are 

implicated. 

58. Wireless Telecommunications 

Carriers (except Satellite). This industry 

comprises establishments engaged in 

operating and maintaining switching 

and transmission facilities to provide 

communications via the airwaves. 

Establishments in this industry have 

spectrum licenses and provide services 

using that spectrum, such as cellular 

services, paging services, wireless 

internet access, and wireless video 

services. The SBA size standard for this 

industry classifies a business as small if 

it has 1,500 or fewer employees. U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms in this industry 

that operated for the entire year. Of that 

number, 2,837 firms employed fewer 

than 250 employees. (The available U.S. 

Census Bureau data does not provide a 

more precise estimate of the number of 

firms that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 594 providers that 

reported they were engaged in the 

provision of wireless services. Of these 

providers, the Commission estimates 

that 511 providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

59. Wireless Communications 

Services. Wireless Communications 

Services (WCS) can be used for a variety 

of fixed, mobile, radiolocation, and 

digital audio broadcasting satellite 

services. Wireless spectrum is made 

available and licensed for the provision 

of wireless communications services in 

several frequency bands subject to part 

27 of the Commission’s rules. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

small business size standard for this 

industry classifies a business as small if 

it has 1,500 or fewer employees. U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms that operated in 

this industry for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. (The available U.S. 

Census Bureau data does not provide a 

more precise estimate of the number of 

firms that meet the SBA size standard.) 

Thus, under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

60. The Commission’s small business 

size standards with respect to WCS 

involve eligibility for bidding credits 

and installment payments in the auction 

of licenses for the various frequency 

bands included in WCS. When bidding 

credits are adopted for the auction of 

licenses in WCS frequency bands, such 

credits may be available to several types 

of small businesses based average gross 

revenues (small, very small and 

entrepreneur) pursuant to the 

competitive bidding rules adopted in 

conjunction with the requirements for 

the auction and/or as identified in the 

designated entities section in part 27 of 

the Commission’s rules for the specific 

WCS frequency bands. (The Designated 

entities sections in subparts D through 

Q each contain the small business size 

standards adopted for the auction of the 

frequency band covered by that 

subpart.) 

61. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 


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auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

62. 1670–1675 MHz Services. These 

wireless communications services can 

be used for fixed and mobile uses, 

except aeronautical mobile. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

size standard for this industry classifies 

a business as small if it has 1,500 or 

fewer employees. U.S. Census Bureau 

data for 2017 show that there were 2,893 

firms that operated in this industry for 

the entire year. Of this number, 2,837 

firms employed fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) Thus, 

under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

63. According to Commission data as 

of November 2021, there were three 

active licenses in this service. (Based on 

an FCC Universal Licensing System 

search on November 8, 2021, search 

parameters: Service Group = All, 

‘‘Match only the following radio 

service(s)’’, Radio Service = BC; 

Authorization Type = All; Status = 

Active. We note that the number of 

active licenses does not equate to the 

number of licensees. A licensee can 

have one or more licenses.) The 

Commission’s small business size 

standards with respect to 1670–1675 

MHz Services involve eligibility for 

bidding credits and installment 

payments in the auction of licenses for 

these services. For licenses in the 1670– 

1675 MHz service band, a ‘‘small 

business’’ is defined as an entity that, 

together with its affiliates and 

controlling interests, has average gross 

revenues not exceeding $40 million for 

the preceding three years, and a ‘‘very 

small business’’ is defined as an entity 

that, together with its affiliates and 

controlling interests, has had average 

annual gross revenues not exceeding 

$15 million for the preceding three 

years. The 1670–1675 MHz service band 

auction’s winning bidder did not claim 

small business status. 

64. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

65. Wireless Telephony. Wireless 

telephony includes cellular, personal 

communications services, and 

specialized mobile radio telephony 

carriers. The closest applicable industry 

with an SBA small business size 

standard is Wireless 

Telecommunications Carriers (except 

Satellite). The size standard for this 

industry under SBA rules is that a 

business is small if it has 1,500 or fewer 

employees. For this industry, U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms that operated for 

the entire year. Of this number, 2,837 

firms employed fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 331 providers that 

reported they were engaged in the 

provision of cellular, personal 

communications services, and 

specialized mobile radio services. Of 

these providers, the Commission 

estimates that 255 providers have 1,500 

or fewer employees. Consequently, 

using the SBA’s small business size 

standard, most of these providers can be 

considered small entities. 

66. Broadband Personal 

Communications Service. The 

broadband personal communications 

services (PCS) spectrum encompasses 

services in the 1850–1910 and 1930– 

1990 MHz bands. The closest industry 

with an SBA small business size 

standard applicable to these services is 

Wireless Telecommunications Carriers 

(except Satellite). The SBA small 

business size standard for this industry 

classifies a business as small if it has 

1,500 or fewer employees. U.S. Census 

Bureau data for 2017 show that there 

were 2,893 firms that operated in this 

industry for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. (The available U.S. 

Census Bureau data does not provide a 

more precise estimate of the number of 

firms that meet the SBA size standard.) 

Thus, under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

67. Based on Commission data as of 

November 2021, there were 

approximately 5,060 active licenses in 

the Broadband PCS service. (Based on 

an FCC Universal Licensing System 

search on November 16, 2021, search 

parameters: Service Group = All, 

‘‘Match only the following radio 

service(s)’’, Radio Service = CW; 

Authorization Type = All; Status = 

Active. We note that the number of 

active licenses does not equate to the 

number of licensees. A licensee can 

have one or more licenses.) The 

Commission’s small business size 

standards with respect to Broadband 

PCS involve eligibility for bidding 

credits and installment payments in the 

auction of licenses for these services. In 

auctions for these licenses, the 

Commission defined ‘‘small business’’ 

as an entity that, together with its 

affiliates and controlling interests, has 

average gross revenues not exceeding 

$40 million for the preceding three 

years, and a ‘‘very small business’’ as an 

entity that, together with its affiliates 

and controlling interests, has had 

average annual gross revenues not 

exceeding $15 million for the preceding 

three years. Winning bidders claiming 

small business credits won Broadband 

PCS licenses in C, D, E, and F Blocks. 

68. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these, 

at this time we are not able to estimate 

the number of licensees with active 

licenses that would qualify as small 

under the SBA’s small business size 

standard. 

69. Specialized Mobile Radio 

Licenses. Special Mobile Radio (SMR) 

licenses allow licensees to provide land 

mobile communications services (other 


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than radiolocation services) in the 800 

MHz and 900 MHz spectrum bands on 

a commercial basis including but not 

limited to services used for voice and 

data communications, paging, and 

facsimile services, to individuals, 

Federal Government entities, and other 

entities licensed under part 90 of the 

Commission’s rules. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

size standard for this industry classifies 

a business as small if it has 1,500 or 

fewer employees. For this industry, U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms in this industry 

that operated for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. (The available U.S. 

Census Bureau data does not provide a 

more precise estimate of the number of 

firms that meet the SBA size standard.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 95 providers that 

reported they were of SMR (dispatch) 

providers. Of this number, the 

Commission estimates that all 95 

providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

these 119 SMR licensees can be 

considered small entities. (We note that 

there were also SMR providers reporting 

in the ‘‘Cellular/PCS/SMR’’ 

classification, therefore there are maybe 

additional SMR providers that have not 

been accounted for in the SMR 

(dispatch) classification.) 

70. Based on Commission data as of 

December 2021, there were 3,924 active 

SMR licenses. (Based on an FCC 

Universal Licensing System search on 

December 15, 2021, search parameters: 

Service Group = All, ‘‘Match radio 

services within this group’’, Radio 

Service = SMR; Authorization Type = 

All; Status = Active. We note that the 

number of active licenses does not 

equate to the number of licensees. A 

licensee can have one or more licenses.) 

However, since the Commission does 

not collect data on the number of 

employees for licensees providing SMR 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. Nevertheless, for 

purposes of this analysis the 

Commission estimates that the majority 

of SMR licensees can be considered 

small entities using the SBA’s small 

business size standard. 

71. Lower 700 MHz Band Licenses. 

The lower 700 MHz band encompasses 

spectrum in the 698–746 MHz 

frequency bands. Permissible operations 

in these bands include flexible fixed, 

mobile, and broadcast uses, including 

mobile and other digital new broadcast 

operation; fixed and mobile wireless 

commercial services (including 

frequency division duplex (FDD)- and 

time division duplex (TDD)-based 

services); as well as fixed and mobile 

wireless uses for private, internal radio 

needs, two-way interactive, cellular, and 

mobile television broadcasting services. 

Wireless Telecommunications Carriers 

(except Satellite) is the closest industry 

with an SBA small business size 

standard applicable to licenses 

providing services in these bands. The 

SBA small business size standard for 

this industry classifies a business as 

small if it has 1,500 or fewer employees. 

U.S. Census Bureau data for 2017 show 

that there were 2,893 firms that operated 

in this industry for the entire year. Of 

this number, 2,837 firms employed 

fewer than 250 employees. (The 

available U.S. Census Bureau data does 

not provide a more precise estimate of 

the number of firms that meet the SBA 

size standard.) Thus, under the SBA size 

standard, the Commission estimates that 

a majority of licensees in this industry 

can be considered small. 

72. According to Commission data as 

of December 2021, there were 

approximately 2,824 active Lower 700 

MHz Band licenses. (Based on an FCC 

Universal Licensing System search on 

December 14, 2021, search parameters: 

Service Group = All, ‘‘Match only the 

following radio service(s)’’, Radio 

Service = WY, WZ; Authorization Type 

= All; Status = Active. We note that the 

number of active licenses does not 

equate to the number of licensees. A 

licensee can have one or more licenses.) 

The Commission’s small business size 

standards with respect to Lower 700 

MHz Band licensees involve eligibility 

for bidding credits and installment 

payments in the auction of licenses. For 

auctions of Lower 700 MHz Band 

licenses the Commission adopted 

criteria for three groups of small 

businesses. A very small business was 

defined as an entity that, together with 

its affiliates and controlling interests, 

has average annual gross revenues not 

exceeding $15 million for the preceding 

three years, a small business was 

defined as an entity that, together with 

its affiliates and controlling interests, 

has average gross revenues not 

exceeding $40 million for the preceding 

three years, and an entrepreneur was 

defined as an entity that, together with 

its affiliates and controlling interests, 

has average gross revenues not 

exceeding $3 million for the preceding 

three years. In auctions for Lower 700 

MHz Band licenses seventy-two 

winning bidders claiming a small 

business classification won 329 

licenses, twenty-six winning bidders 

claiming a small business classification 

won 214 licenses, and three winning 

bidders claiming a small business 

classification won all five auctioned 

licenses. 

73. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

74. Upper 700 MHz Band Licenses. 

The upper 700 MHz band encompasses 

spectrum in the 746–806 MHz bands. 

Upper 700 MHz D Block licenses are 

nationwide licenses associated with the 

758–763 MHz and 788–793 MHz bands. 

Permissible operations in these bands 

include flexible fixed, mobile, and 

broadcast uses, including mobile and 

other digital new broadcast operation; 

fixed and mobile wireless commercial 

services (including FDD- and TDDbased services); as well as fixed and 

mobile wireless uses for private, 

internal radio needs, two-way 

interactive, cellular, and mobile 

television broadcasting services. (We 

note that in Auction 73, Upper 700 MHz 

Band C and D Blocks as well as Lower 

700 MHz Band A, B, and E Blocks were 

auctioned.) Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to licenses providing services 

in these bands. The SBA small business 

size standard for this industry classifies 

a business as small if it has 1,500 or 

fewer employees. U.S. Census Bureau 

data for 2017 show that there were 2,893 

firms that operated in this industry for 

the entire year. Of that number, 2,837 

firms employed fewer than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) Thus, 

under the SBA size standard, the 


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Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

75. According to Commission data as 

of December 2021, there were 

approximately 152 active Upper 700 

MHz Band licenses. (Based on an FCC 

Universal Licensing System search on 

December 14, 2021, search parameters: 

Service Group = All, ‘‘Match only the 

following radio service(s)’’, Radio 

Service = WP, WU; Authorization Type 

= All; Status = Active. We note that the 

number of active licenses does not 

equate to the number of licensees. A 

licensee can have one or more licenses.) 

The Commission’s small business size 

standards with respect to Upper 700 

MHz Band licensees involve eligibility 

for bidding credits and installment 

payments in the auction of licenses. For 

the auction of these licenses, the 

Commission defined a ‘‘small business’’ 

as an entity that, together with its 

affiliates and controlling principals, has 

average gross revenues not exceeding 

$40 million for the preceding three 

years, and a ‘‘very small business’’ an 

entity that, together with its affiliates 

and controlling principals, has average 

gross revenues that are not more than 

$15 million for the preceding three 

years. Pursuant to these definitions, 

three winning bidders claiming very 

small business status won five of the 

twelve available licenses. 

76. Air-Ground Radiotelephone 

Service. Air-Ground Radiotelephone 

Service is a wireless service in which 

licensees are authorized to offer and 

provide radio telecommunications 

service for hire to subscribers in aircraft. 

A licensee may provide any type of airground service (i.e., voice telephony, 

broadband internet, data, etc.) to aircraft 

of any type, and serve any or all aviation 

markets (commercial, government, and 

general). A licensee must provide 

service to aircraft and may not provide 

ancillary land mobile or fixed services 

in the 800 MHz air-ground spectrum. 

77. The closest industry with an SBA 

small business size standard applicable 

to these services is Wireless 

Telecommunications Carriers (except 

Satellite). The SBA small business size 

standard for this industry classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 2,893 firms 

that operated in this industry for the 

entire year. Of this number, 2,837 firms 

employed fewer than 250 employees. 

(The available U.S. Census Bureau data 

does not provide a more precise 

estimate of the number of firms that 

meet the SBA size standard.) Thus, 

under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

78. Based on Commission data as of 

December 2021, there were 

approximately four licensees with 110 

active licenses in the Air-Ground 

Radiotelephone Service. (Based on an 

FCC Universal Licensing System search 

on December 20, 2021, search 

parameters: Service Group = All, 

‘‘Match only the following radio 

service(s)’’, Radio Service = CG, CJ; 

Authorization Type = All; Status = 

Active. We note that the number of 

active licenses does not equate to the 

number of licensees. A licensee can 

have one or more licenses.) The 

Commission’s small business size 

standards with respect to Air-Ground 

Radiotelephone Service involve 

eligibility for bidding credits and 

installment payments in the auction of 

licenses. For purposes of auctions, the 

Commission defined ‘‘small business’’ 

as an entity that, together with its 

affiliates and controlling interests, has 

average gross revenues not exceeding 

$40 million for the preceding three 

years, and a ‘‘very small business’’ as an 

entity that, together with its affiliates 

and controlling interests, has had 

average annual gross revenues not 

exceeding $15 million for the preceding 

three years. In the auction of AirGround Radiotelephone Service licenses 

in the 800 MHz band, neither of the two 

winning bidders claimed small business 

status. 

79. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, the Commission does not 

collect data on the number of employees 

for licensees providing these services 

therefore, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

80. 3650–3700 MHz band. Wireless 

broadband service licensing in the 

3650–3700 MHz band provides for 

nationwide, non-exclusive licensing of 

terrestrial operations, utilizing 

contention-based technologies, in the 

3650 MHz band (i.e., 3650–3700 MHz). 

Licensees are permitted to provide 

services on a non-common carrier and/ 

or on a common carrier basis. Wireless 

broadband services in the 3650–3700 

MHz band fall in the Wireless 

Telecommunications Carriers (except 

Satellite) industry with an SBA small 

business size standard that classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 2,893 firms 

that operated in this industry for the 

entire year. Of this number, 2,837 firms 

employed fewer than 250 employees. 

(The available U.S. Census Bureau data 

does not provide a more precise 

estimate of the number of firms that 

meet the SBA size standard.) Thus, 

under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

81. The Commission has not 

developed a small business size 

standard applicable to 3650–3700 MHz 

band licensees. Based on the licenses 

that have been granted, however, we 

estimate that the majority of licensees in 

this service are small internet Access 

Service Providers (ISPs). As of 

November 2021, Commission data 

shows that there were 902 active 

licenses in the 3650–3700 MHz band. 

(Based on an FCC Universal Licensing 

System search on November 19, 2021, 

search parameters: Service Group = All, 

‘‘Match only the following radio 

service(s)’’, Radio Service = NN; 

Authorization Type =All; Status = 

Active. We note that the number of 

active licenses does not equate to the 

number of licensees. A licensee can 

have one or more licenses.) However, 

since the Commission does not collect 

data on the number of employees for 

licensees providing these services, at 

this time we are not able to estimate the 

number of licensees with active licenses 

that would qualify as small under the 

SBA’s small business size standard. 

82. Fixed Microwave Services. Fixed 

microwave services include common 

carrier, private-operational fixed, and 

broadcast auxiliary radio services. 

(Auxiliary Microwave Service is 

governed by part 74 of title 47 of the 

Commission’s Rules. Available to 

licensees of broadcast stations and to 

broadcast and cable network entities, 

broadcast auxiliary microwave stations 

are used for relaying broadcast 

television signals from the studio to the 

transmitter, or between two points such 

as a main studio and an auxiliary 

studio. The service also includes mobile 

TV pickups, which relay signals from a 

remote location back to the studio.) 

They also include the Upper Microwave 

Flexible Use Service (UMFUS), 

Millimeter Wave Service (70/80/90 

GHz), Local Multipoint Distribution 

Service (LMDS), the Digital Electronic 

Message Service (DEMS), 24 GHz 


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Service, Multiple Address Systems 

(MAS), and Multichannel Video 

Distribution and Data Service (MVDDS), 

where in some bands licensees can 

choose between common carrier and 

non-common carrier status. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

small size standard for this industry 

classifies a business as small if it has 

1,500 or fewer employees. U.S. Census 

Bureau data for 2017 show that there 

were 2,893 firms that operated in this 

industry for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. (The available U.S. 

Census Bureau data does not provide a 

more precise estimate of the number of 

firms that meet the SBA size standard.) 

Thus, under the SBA size standard, the 

Commission estimates that a majority of 

fixed microwave service licensees can 

be considered small. 

83. The Commission’s small business 

size standards with respect to fixed 

microwave services involve eligibility 

for bidding credits and installment 

payments in the auction of licenses for 

the various frequency bands included in 

fixed microwave services. When 

bidding credits are adopted for the 

auction of licenses in fixed microwave 

services frequency bands, such credits 

may be available to several types of 

small businesses based average gross 

revenues (small, very small and 

entrepreneur) pursuant to the 

competitive bidding rules adopted in 

conjunction with the requirements for 

the auction and/or as identified in part 

101 of the Commission’s rules for the 

specific fixed microwave services 

frequency bands. 

84. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

85. Broadband Radio Service and 

Educational Broadband Service. 

Broadband Radio Service systems, 

previously referred to as Multipoint 

Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service (MMDS) systems, and ‘‘wireless 

cable,’’ transmit video programming to 

subscribers and provide two-way high 

speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service 

(ITFS)). (The use of the term ‘‘wireless 

cable’’ does not imply that it constitutes 

cable television for statutory or 

regulatory purposes.) Wireless cable 

operators that use spectrum in the BRS 

often supplemented with leased 

channels from the EBS, provide a 

competitive alternative to wired cable 

and other multichannel video 

programming distributors. Wireless 

cable programming to subscribers 

resembles cable television, but instead 

of coaxial cable, wireless cable uses 

microwave channels. (Generally, a 

wireless cable system may be described 

as a microwave station transmitting on 

a combination of BRS and EBS channels 

to numerous receivers with antennas, 

such as single-family residences, 

apartment complexes, hotels, 

educational institutions, business 

entities and governmental offices. The 

range of the transmission depends upon 

the transmitter power, the type of 

receiving antenna and the existence of 

a line-of-sight path between the 

transmitter or signal booster and the 

receiving antenna.) 

86. In light of the use of wireless 

frequencies by BRS and EBS services, 

the closest industry with an SBA small 

business size standard applicable to 

these services is Wireless 

Telecommunications Carriers (except 

Satellite). The SBA small business size 

standard for this industry classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 2,893 firms 

that operated in this industry for the 

entire year. Of this number, 2,837 firms 

employed fewer than 250 employees. 

(The available U.S. Census Bureau data 

does not provide a more precise 

estimate of the number of firms that 

meet the SBA size standard.) Thus, 

under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

87. According to Commission data as 

December 2021, there were 

approximately 5,869 active BRS and 

EBS licenses. (Based on an FCC 

Universal Licensing System search on 

December 10, 2021, search parameters: 

Service Group = All, ‘‘Match only the 

following radio service(s)’’, Radio 

Service = BR, ED; Authorization Type = 

All; Status = Active. We note that the 

number of active licenses does not 

equate to the number of licensees. A 

licensee can have one or more licenses.) 

The Commission’s small business size 

standards with respect to BRS involves 

eligibility for bidding credits and 

installment payments in the auction of 

licenses for these services. For the 

auction of BRS licenses, the 

Commission adopted criteria for three 

groups of small businesses. A very small 

business is an entity that, together with 

its affiliates and controlling interests, 

has average annual gross revenues 

exceed $3 million and did not exceed 

$15 million for the preceding three 

years, a small business is an entity that, 

together with its affiliates and 

controlling interests, has average gross 

revenues exceed $15 million and did 

not exceed $40 million for the preceding 

three years, and an entrepreneur is an 

entity that, together with its affiliates 

and controlling interests, has average 

gross revenues not exceeding $3 million 

for the preceding three years. Of the ten 

winning bidders for BRS licenses, two 

bidders claiming the small business 

status won 4 licenses, one bidder 

claiming the very small business status 

won three licenses and two bidders 

claiming entrepreneur status won six 

licenses. One of the winning bidders 

claiming a small business status 

classification in the BRS license auction 

has an active license as of December 

2021. (We note that the number of active 

licenses does not equate to the number 

of licensees. A licensee can have one or 

more licenses.) We note that the number 

of active licenses does not equate to the 

number of licensees. A licensee can 

have one or more licenses. 

88. The Commission’s small business 

size standards for EBS define a small 

business as an entity that, together with 

its affiliates, its controlling interests and 

the affiliates of its controlling interests, 

has average gross revenues that are not 

more than $55 million for the preceding 

five (5) years, and a very small business 

is an entity that, together with its 

affiliates, its controlling interests and 

the affiliates of its controlling interests, 

has average gross revenues that are not 

more than $20 million for the preceding 

five (5) years. In frequency bands where 

licenses were subject to auction, the 

Commission notes that as a general 

matter, the number of winning bidders 

that qualify as small businesses at the 

close of an auction does not necessarily 

represent the number of small 

businesses currently in service. Further, 

the Commission does not generally track 

subsequent business size unless, in the 


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context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

4. Satellite Service Providers 

89. Satellite Telecommunications. 

This industry comprises firms primarily 

engaged in providing 

telecommunications services to other 

establishments in the 

telecommunications and broadcasting 

industries by forwarding and receiving 

communications signals via a system of 

satellites or reselling satellite 

telecommunications. Satellite 

telecommunications service providers 

include satellite and earth station 

operators. The SBA small business size 

standard for this industry classifies a 

business with $35 million or less in 

annual receipts as small. U.S. Census 

Bureau data for 2017 show that 275 

firms in this industry operated for the 

entire year. Of this number, 242 firms 

had revenue of less than $25 million. 

(The available U.S. Census Bureau data 

does not provide a more precise 

estimate of the number of firms that 

meet the SBA size standard. We also 

note that according to the U.S. Census 

Bureau glossary, the terms receipts and 

revenues are used interchangeably.) 

Additionally, based on Commission 

data in the 2022 Universal Service 

Monitoring Report, as of December 31, 

2021, there were 65 providers that 

reported they were engaged in the 

provision of satellite 

telecommunications services. Of these 

providers, the Commission estimates 

that approximately 42 providers have 

1,500 or fewer employees. 

Consequently, using the SBA’s small 

business size standard, a little more 

than half of these providers can be 

considered small entities. 

90. All Other Telecommunications. 

This industry is comprised of 

establishments 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. Providers of internet 

services (e.g., dial-up ISPs) or voice over 

internet protocol (VoIP) services, via 

client-supplied telecommunications 

connections are also included in this 

industry. The SBA small business size 

standard for this industry classifies 

firms with annual receipts of $35 

million or less as small. U.S. Census 

Bureau data for 2017 show that there 

were 1,079 firms in this industry that 

operated for the entire year. Of those 

firms, 1,039 had revenue of less than 

$25 million. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard. We 

also note that according to the U.S. 

Census Bureau glossary, the terms 

receipts and revenues are used 

interchangeably.) Based on this data, the 

Commission estimates that the majority 

of ‘‘All Other Telecommunications’’ 

firms can be considered small. 

5. Cable Service Providers 

91. Because section 706 of the Act 

requires us to monitor the deployment 

of broadband using any technology, we 

anticipate that some broadband service 

providers may not provide telephone 

service. Accordingly, we describe below 

other types of firms that may provide 

broadband services, including cable 

companies, MDS providers, and 

utilities, among others. 

92. Cable and Other Subscription 

Programming. The U.S. Census Bureau 

defines this industry as establishments 

primarily engaged in operating studios 

and facilities for the broadcasting of 

programs on a subscription or fee basis. 

The broadcast programming is typically 

narrowcast in nature (e.g., limited 

format, such as news, sports, education, 

or youth-oriented). These 

establishments produce programming in 

their own facilities or acquire 

programming from external sources. The 

programming material is usually 

delivered to a third party, such as cable 

systems or direct-to-home satellite 

systems, for transmission to viewers. 

The SBA small business size standard 

for this industry classifies firms with 

annual receipts less than $41.5 million 

as small. Based on U.S. Census Bureau 

data for 2017, 378 firms operated in this 

industry during that year. (The U.S. 

Census Bureau withheld publication of 

the number of firms that operated for 

the entire year to avoid disclosing data 

for individual companies (see Cell Notes 

for this category).) Of that number, 149 

firms operated with revenue of less than 

$25 million a year and 44 firms operated 

with revenue of $25 million or more. 

(The available U.S. Census Bureau data 

does not provide a more precise 

estimate of the number of firms that 

meet the SBA size standard. We note 

that the U.S. Census Bureau withheld 

publication of the number of firms that 

operated with sales/value of shipments/ 

revenue in all categories of revenue less 

than $500,000 to avoid disclosing data 

for individual companies (see Cell Notes 

for the sales/value of shipments/revenue 

in these categories). Therefore, the 

number of firms with revenue that meet 

the SBA size standard would be higher 

than noted herein. We also note that 

according to the U.S. Census Bureau 

glossary, the terms receipts and 

revenues are used interchangeably.) 

Based on this data, the Commission 

estimates that a majority of firms in this 

industry are small. 

93. Cable Companies and Systems 

(Rate Regulation). The Commission has 

developed its own small business size 

standard 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. Based on industry data, 

there are about 420 cable companies in 

the U.S. Of these, only seven have more 

than 400,000 subscribers. In addition, 

under the Commission’s rules, a ‘‘small 

system’’ is a cable system serving 15,000 

or fewer subscribers. Based on industry 

data, there are about 4,139 cable systems 

(headends) in the U.S. Of these, about 

639 have more than 15,000 subscribers. 

Accordingly, the Commission estimates 

that the majority of cable companies and 

cable systems are small. 

94. Cable System Operators (Telecom 

Act Standard). The Communications 

Act of 1934, as amended, contains a size 

standard for a ‘‘small cable operator,’’ 

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. For 

purposes of the Telecom Act Standard, 

the Commission determined that a cable 

system operator that serves fewer than 

498,000 subscribers, either directly or 

through affiliates, will meet the 

definition of a small cable operator. (In 

the 2023 Subscriber Threshold Public 

Notice, the Commission determined that 

there were approximately 49.8 million 

cable subscribers in the United States at 

that time using the most reliable source 

publicly available. This threshold will 

remain in effect until the Commission 

issues a superseding Public Notice.) 

Based on industry data, only six cable 

system operators have more than 

498,000 subscribers. Accordingly, the 

Commission estimates that the majority 

of cable system operators are small 

under this size standard. We note 

however, that the Commission neither 


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requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million. 

(The Commission does receive such 

information on a case-by-case basis if a 

cable operator appeals a local franchise 

authority’s finding that the operator 

does not qualify as a small cable 

operator pursuant to § 76.901(e) of the 

Commission’s rules.) Therefore, 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. 

6. All Other Telecommunications 

95. Electric Power Generators, 

Transmitters, and Distributors. The U.S. 

Census Bureau defines the utilities 

sector industry as comprised of 

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 industry group is 

categorized based on fuel source and 

includes Hydroelectric Power 

Generation, Fossil Fuel Electric Power 

Generation, Nuclear Electric Power 

Generation, Solar Electric Power 

Generation, Wind Electric Power 

Generation, Geothermal Electric Power 

Generation, Biomass Electric Power 

Generation, Other Electric Power 

Generation, Electric Bulk Power 

Transmission and Control, and Electric 

Power Distribution. 

96. The SBA has established a small 

business size standard for each of these 

groups based on the number of 

employees which ranges from having 

fewer than 250 employees to having 

fewer than 1,000 employees. U.S. 

Census Bureau data for 2017 indicate 

that for the Electric Power Generation, 

Transmission, and Distribution industry 

there were 1,693 firms that operated in 

this industry for the entire year. Of this 

number, 1,552 firms had less than 250 

employees. (The available U.S. Census 

Bureau data does not provide a more 

precise estimate of the number of firms 

that meet the SBA size standard.) Based 

on this data and the associated SBA size 

standards, the majority of firms in this 

industry can be considered small 

entities. 

E. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

97. In the Fourth Report and Order, 

we (1) establish a new process for the 

Commission’s review and assessment of 

pole attachment disputes that impede or 

delay broadband deployment in order to 

expedite resolution of such disputes, 

and (2) adopt a new requirement that 

utilities retain copies of their cyclical 

pole inspection reports and, upon 

request, provide prospective pole 

attachers with the information included 

in the most recent report regarding the 

poles affected by a prospective 

attacher’s submitted attachment 

application. Our new requirements are 

minimally burdensome as they merely 

require (1) parties seeking to have 

complaints placed on the Accelerated 

Docket to submit a form to the newlyestablished Rapid Broadband 

Assessment Team (RBAT) that will 

elicit information relevant to the scope 

and nature of the dispute and to 

whether the dispute is appropriate for 

expedited mediation and/or placement 

on the Accelerated Docket, and (2) 

utilities to provide information they 

already collect in the normal course of 

business for cyclical pole inspection 

reports. 

98. Parties seeking both RBAT review 

and assessment of a dispute that a party 

contends is impeding or delaying 

deployment of broadband facilities, and 

inclusion of a proceeding relating to 

broadband facilities deployment on the 

Accelerated Docket, the party must first 

notify the Chief of the Enforcement 

Bureau’s Market Disputes Resolution 

Division (MDRD) of the request by 

phone and in writing. This initial 

notification by phone and in writing 

would need to be made prior to filing 

the formal complaint and would 

constitute the notification required 

under § 1.736(b). Additionally, the 

RBAT may require that the parties 

participate, if appropriate, in pre-filing 

settlement negotiations or mediation 

under § 1.737 as a condition for 

including a matter on the Accelerated 

Docket. We amend our pole attachment 

make-ready rules to require utilities to 

provide to potential attachers, upon 

request, the information contained in 

their most recent cyclical pole 

inspection reports, or any intervening, 

periodic reports created before the next 

cyclical inspection, for the poles 

covered by a submitted attachment 

application, including whether any of 

the affected poles have been ‘‘red 

tagged’’ by the utility for replacement, 

and the scheduled replacement date or 

timeframe. The record indicates that 

utilities already prepare such reports, 

making this new transparency 

requirement consistent with the existing 

practices. For these reasons, we believe 

that small and other utilities will not 

have an issue complying with the new 

obligation. 

99. The Commission does not have 

sufficient information on the record to 

determine whether small entities will be 

required to hire professionals to comply 

with its decisions, or to quantify the 

cost of compliance for small entities 

with the Fourth Report and Order. 

While some small entities may have 

some unique burdens, the Commission 

anticipates the requirements for pole 

attachment disputes and data collection 

by utility companies will have minimal 

cost implications because many of these 

obligations are consistent with existing 

Commission regulations to file disputes, 

and existing practices by utilities to 

prepare pole inspection reports. 

F. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

100. The RFA requires an agency to 

provide a description of the steps the 

agency has taken to minimize the 

significant economic impact on small 

entities including a statement of the 

factual, policy, and legal reasons for 

selecting the alternative adopted in the 

final rule and why each one of the other 

significant alternatives to the rule 

considered by the agency which affect 

the impact on small entities was 

rejected. 

101. The Commission took steps to 

minimize significant economic impact 

on small entities and considered 

alternatives to new rules and processes 

adopted in the Fourth Report and Order 

that may impact small entities. By 

establishing the RBAT, we addressed 

commenters’ request that we expedite 

the resolution of pole attachment 

disputes, the delay of which may 

impose greater harm on small providers. 

In considering alternatives to the rules, 

we declined to adopt certain proposals 

that are burdensome, unnecessary, or 

would impose significant costs on 

utilities with little or no benefit to 

broadband deployment. For example, 

we agreed with utilities that they should 

not be required to gather and provide 

pole-related data for matters they do not 

track in the normal course of business 

through their inspections. We also 

declined to require that small and other 

utilities provide new attachers with 

information about poles prior to the 

attacher submitting an application 

because this data would be speculative 

and the build-out may never occur. 

Additionally, we declined to establish a 


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single pole-information database or 

require each utility to create a database 

of all its poles. Similar to our prior 

decisions on this matter, the record 

demonstrates that the burdens and costs 

of creating such a database are 

considerable given that many utilities 

own or jointly own poles. Further, the 

scope of pole data attachers seek exists 

in information from pole inspection 

reports we require small and other 

utility companies to provide in the 

Fourth Report and Order. We 

considered and declined to require 

small and other utilities to provide 

financial data regarding poles and 

attachment rates because this would be 

overly burdensome for the utilities. We 

also considered but declined to require 

small and other utilities to provide 

information on the age or condition of 

the poles, or number of current or 

pending attachment applications for 

each pole because it could be 

burdensome, unnecessary, or unfeasible 

in some cases, and would impose 

significant costs on utilities with little 

or no benefit to broadband deployment. 

Finally, we declined to require small 

and other utilities to provide more 

detailed supporting data in their make 

ready estimates because the current 

complaint process should be sufficient 

to address a potential dispute on this 

matter. 

G. Report to Congress 

102. The Commission will send a 

copy of the Fourth Report and Order, 

including the FRFA, in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act. In addition, 

the Commission will send a copy of the 

Fourth Report and Order and 

Declaratory Ruling, including the FRFA, 

to the Chief Counsel for Advocacy of the 

Small Business Administration. A copy 

of the Fourth Report and Order (or 

summaries thereof) will also be 

published in the Federal Register. 

V. Procedural Matters 

103. Regulatory Flexibility Act. The 

Regulatory Flexibility Act of 1980, as 

amended (RFA), requires that an agency 

prepare a regulatory flexibility analysis 

for notice and comment rulemakings, 

unless the agency certifies that the rule 

will not, if promulgated, have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, we have prepared a Final 

Regulatory Flexibility Analysis (FRFA) 

concerning the possible impact of the 

rule changes contained in the Fourth 

Report and Order on small entities. The 

FRFA is set forth herein. 

104. Congressional Review Act. The 

Commission will send a copy of the 

Fourth Report and Order to Congress 

and the Government Accountability 

Office pursuant to 5 U.S.C. 801(a)(1)(A). 

105. Paperwork Reduction Act. This 

document may contain proposed new or 

modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. Specifically, the rules 

adopted in 47 CFR 1.1411, 1.1415, and 

1.1416 may require new or modified 

information collections. All such new or 

modified information collection 

requirements 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, we note that 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we previously sought specific comment 

on how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. In this 

document, we describe several steps we 

have taken to minimize the information 

collection burdens on small entities. 

VI. Ordering Clauses 

106. Accordingly, it is ordered that 

pursuant to sections 1–4, 201, 202, 224, 

and 303(r) of the Communications Act 

of 1934, as amended, 47 U.S.C. 151–54, 

201, 202, 224, and 303(r), the Fourth 

Report and Order and Declaratory 

Ruling hereby is adopted and part 1 of 

the Commission’s Rules, 47 CFR part 1, 

is amended as set forth in Appendix A 

of the Fourth Report and Order. 

107. It is further ordered that the 

Fourth Report and Order shall become 

effective 30 days after publication in the 

Federal Register, except that the 

amendments to § 1.1411(c)(4) and new 

§ 1.1415, 47 CFR 1.1411(c)(4), 1.1415, 

which may contain new or modified 

information collection requirements, 

will not become effective until the 

Office of Management and Budget 

completes review of any information 

collection requirements that the 

Wireline Competition Bureau 

determines is required under the 

Paperwork Reduction Act. The 

Commission directs the Wireline 

Competition Bureau to announce the 

effective date for § 1.1411(c)(4) and new 

§ 1.1415 by subsequent Public Notice. 

108. It is further ordered that, 

pursuant to 47 CFR 1.4(b)(1), the period 

for filing petitions for reconsideration or 

petitions for judicial review of the 

Fourth Report and Order will 

commence on the date that a summary 

of the Fourth Report and Order is 

published in the Federal Register, and 

the period for filing petitions for 

reconsideration or petitions for judicial 

review of the Declaratory Ruling will 

commence upon release of the 

Declaratory Ruling. 

109. It is further ordered that the 

Commission’s Office of the Secretary, 

shall send a copy of the Fourth Report 

and Order and Declaratory Ruling, 

including the Final Regulatory 

Flexibility Analysis and Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

110. It is further ordered that the 

Office of the Managing Director, 

Performance Evaluation and Records 

Management, shall send a copy of the 

Fourth Report and Order in a report to 

be sent 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. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

Final Rules 

The Federal Communications 

Commission amends part 1 of title 47 of 

the Code of Federal Regulations as 

follows: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 1 

continues to read as follows: 

Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 

U.S.C. 2461. 

■ 2. Delayed indefinitely, amend 

§ 1.1411 by adding paragraph (c)(4) to 

read as follows: 

§ 1.1411 Timeline for access to utility 

poles. 

* * * * * 

(c) * * * 

(4) Information from cyclical pole 

inspection reports. (i) Upon submitting 

its attachment application, a new 

attacher may request in writing that the 

utility provide, as to the poles covered 

by such attachment application, the 

information regarding those poles 

contained in the utility’s most recent 

cyclical pole inspection reports, or, if 

available, any more recent pole 

inspection report. The utility shall 


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provide the new attacher with this 

information within ten (10) business 

days of the new attacher’s written 

request. 

(ii) Utilities shall retain copies of their 

pole inspection reports, in the form they 

are created, until a superseding report 

covering the poles included in the 

attachment application is completed. 

(iii) For purposes of this section, a 

cyclical pole inspection report is any 

report that a utility creates in the normal 

course of its business that sets forth the 

results of a routine inspection of its 

poles during the utility’s normal pole 

inspection cycle. 

(iv) After requesting and receiving 

pole inspection information from a 

utility related to poles covered by its 

application, a new attacher may amend 

an attachment application at any time 

until the utility grants or denies the 

original application. 

(A) A utility that receives such an 

amended attachment application may, 

at its option, restart the 45-day period 

(or 60-day period for larger orders) for 

responding to the application and 

conducting the survey. 

(B) A utility electing to restart the 45- 

day period (or 60-day period for larger 

orders) shall notify the attacher of its 

intent to do so within five (5) business 

days of receipt of the amended 

application or by the 45th day (or 60th 

day, if applicable) after the original 

application is considered complete, 

whichever is earlier. 

* * * * * 

§ 1.1415 [Redesignated as § 1.1416] 

■ 3. Redesignate § 1.1415 as § 1.1416. 

■ 4. Delayed indefinitely, add a new 

§ 1.1415 to read as follows: 

§ 1.1415 Dispute resolution procedures for 

pole attachment disputes that impede or 

delay broadband deployment; functions of 

the Rapid Broadband Assessment Team. 

(a) An inter-bureau team, to be known 

as the Rapid Broadband Assessment 

Team (RBAT), shall be established to 

prioritize and expedite the resolution of 

pole attachment disputes that are 

alleged to impede or delay the 

deployment of broadband facilities and 

to provide coordinated review and 

assessment of such disputes. The RBAT 

shall consist of one or more staff from 

the Enforcement Bureau and one or 

more staff from the Wireline 

Competition Bureau. Senior staff in the 

Enforcement Bureau and the Wireline 

Competition Bureau shall designate 

individuals from their respective 

bureaus to serve on the RBAT. 

(b) The RBAT shall prioritize the 

resolution of a pole attachment dispute 

that a party seeking RBAT review has 

alleged is impeding or delaying an 

active broadband deployment project, 

including where the party is also 

seeking placement of the dispute on the 

Accelerated Docket pursuant to § 1.736. 

The RBAT shall gather and promptly 

review all pertinent information 

submitted by the parties and shall have 

discretion to decide the most 

appropriate process for resolving the 

dispute, including recommending an 

RBAT-supervised mediation process 

pursuant to § 1.737, use of the 

Accelerated Docket, and/or other 

appropriate action. Although RBATsupervised mediation is generally 

voluntary, the RBAT may require that 

the parties participate in pre-filing 

settlement negotiations or mediation 

under § 1.737 as a condition for 

including a matter on the Accelerated 

Docket. The RBAT may recommend to 

the parties use of the Accelerated 

Docket where it determines, based upon 

a totality of the criteria outlined in 

paragraph (e) of this section, that a 

complaint, or a portion of a complaint, 

is suitable for inclusion on the 

Accelerated Docket. 

(c) A party to a pole attachment 

dispute, prior to filing a formal 

complaint, may request RBAT review 

and assessment of such dispute if the 

party believes the dispute is impeding 

or delaying the deployment of a 

broadband facilities project. The party 

seeking RBAT review and assessment 

shall first notify the Chief of the 

Enforcement Bureau’s Market Disputes 

Resolution Division (MDRD) by phone 

and in writing of the request. The 

MDRD Chief shall direct the requesting 

party to the location of a form on the 

MDRD website—FCC–5653, Request for 

RBAT Review and Assessment—and to 

instructions for completing and 

electronically transmitting the form to 

the RBAT. 

(d) Upon receipt of the completed 

Request for RBAT Review and 

Assessment, the RBAT shall schedule a 

meeting, through a manner of the 

RBAT’s choosing, with all parties as 

soon as practicable. The RBAT may 

request a written response from the 

other party or parties to the dispute with 

respect to one or more issues raised by 

the party seeking RBAT review. The 

RBAT also may request that the party 

seeking RBAT review or any other party 

or parties to the dispute provide the 

RBAT with documentation or other 

information relevant to the dispute. In 

the initial meeting, or shortly thereafter, 

the RBAT shall provide guidance and 

advice to the parties on the most 

effective means of resolving their 

dispute, including RBAT-supervised 

mediation pursuant to § 1.737; use of 

the Accelerated Docket; and/or any 

other appropriate action. If the parties 

seek RBAT-supervised mediation, the 

MDRD Chief, in consultation with the 

RBAT, may waive the procedures or 

requirements of § 1.737 as appropriate 

in this context, or as needed in light of 

the facts or circumstances of a particular 

case. 

(e) The RBAT shall have discretion to 

decide whether a complaint, or a 

portion of a complaint, involving a 

dispute that a party alleges to be 

impeding or delaying the deployment of 

broadband facilities is suitable for 

inclusion on the Accelerated Docket 

pursuant to § 1.736. In determining 

whether to accept a complaint, or a 

portion of a complaint, on the 

Accelerated Docket, the RBAT shall 

base its decision on a totality of the 

factors from the following list: 

(1) Whether the prospective 

complainant states a claim for violation 

of the Act, or a Commission rule or 

order that falls within the Commission’s 

jurisdiction; 

(2) Whether the expedited resolution 

of a particular dispute or category of 

disputes appears likely to advance the 

deployment of broadband facilities or 

services, especially in an unserved or 

underserved area; 

(3) Whether the parties to the dispute 

have exhausted all reasonable 

opportunities for settlement during any 

staff-supervised mediation; 

(4) The number and complexity of the 

issues in dispute; 

(5) Whether the dispute raises new or 

novel issues versus settled 

interpretations of rules or policies; 

(6) The likely need for, and 

complexity of, discovery; 

(7) The likely need for expert 

testimony; 

(8) The ability of the parties to 

stipulate to facts; 

(9) Whether the parties have already 

assembled relevant evidence bearing on 

the disputed facts; 

(10) Willingness of the prospective 

complainant to seek a ruling on a subset 

of claims or issues (e.g., threshold or 

‘‘test cases’’); and 

(11) Such other factors as the RBAT, 

within its discretion, may deem 

appropriate and conducive to the 

prompt and fair adjudication of the 

complaint proceeding. 

[FR Doc. 2024–00416 Filed 1–11–24; 8:45 am] 

BILLING CODE 6712–01–P 


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