[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Rules and Regulations]
[Pages 2151-2171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00416]


-----------------------------------------------------------------------

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 Sec. Sec.  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 
<a href="/cdn-cgi/l/email-protection#d5b8bcb6bdb0b9b0fbb7b0a7b9baa3b095b3b6b6fbb2baa3"><span class="__cf_email__" data-cfemail="95f8fcf6fdf0f9f0bbf7f0e7f9fae3f0d5f3f6f6bbf2fae3">[email protected]</span></a> or at (202) 418-1477, or Michael Ray, Attorney 
Advisor, Competition Policy Division, Wireline Competition Bureau, at 
<a href="/cdn-cgi/l/email-protection#34595d575c5551581a46554d745257571a535b42"><span class="__cf_email__" data-cfemail="c4a9ada7aca5a1a8eab6a5bd84a2a7a7eaa3abb2">[email protected]</span></a> or at (202) 418-0357. For additional information 
concerning the Paperwork Reduction Act proposed information collection 
requirements contained in this document, send an email <a href="/cdn-cgi/l/email-protection#6f1b003f3d2e2f090c0c41080019"><span class="__cf_email__" data-cfemail="35415a656774755356561b525a43">[email protected]</span></a>or 
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 
<a href="/cdn-cgi/l/email-protection#90f6f3f3a5a0a4d0f6f3f3bef7ffe6"><span class="__cf_email__" data-cfemail="b7d1d4d4828783f7d1d4d499d0d8c1">[email protected]</span></a> 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 much-needed 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

[[Page 2152]]

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 right-of-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 right-of-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, 
Sec.  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 Sec.  
1.736 of the Commission's rules; and (3) Sec.  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 Sec.  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 agency-wide 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

[[Page 2153]]

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 Sec.  1.1415 as Sec.  1.1416 and adding a new Sec.  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 Sec.  
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 one-sided 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 
time-sensitive 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 Sec.  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

[[Page 2154]]

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 Sec.  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 Sec.  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 non-
disclosure 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

[[Page 2155]]

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 staff-
supervised 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 Sec.  1.737 of the Commission's rules. Because 
Sec.  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 
Sec.  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 Sec.  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 Sec.  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 
``one-size-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:

[[Page 2156]]

    <bullet> 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;
    <bullet> 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;
    <bullet> whether the parties to the dispute have exhausted all 
reasonable opportunities for settlement during any staff-supervised 
mediation;
    <bullet> the number and complexity of the issues in dispute;
    <bullet> whether the dispute raises new or novel issues versus 
settled interpretations of rules or policies;
    <bullet> the likely need for, and complexity of, discovery;
    <bullet> the likely need for expert testimony;
    <bullet> the ability of the parties to stipulate to facts;
    <bullet> whether the parties have already assembled relevant 
evidence bearing on the disputed facts;
    <bullet> the willingness of the prospective complainant to seek a 
ruling on a subset of claims or issues (e.g., threshold or ``test 
cases''); and
    <bullet> 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 non-disclosure 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

[[Page 2157]]

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 make-ready 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-to-

[[Page 2158]]

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 pole-related 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 pre-application 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 pre-application 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 make-ready 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

[[Page 2159]]

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 
co-own and the ever-changing nature of pole networks, maintaining a 
fully up-to-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 pole-related 
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,

[[Page 2160]]

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, Sec.  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 pre-complaint negotiations have a chance of 
success.'' (NCTA contends the former language in Sec.  1.1404(g) was 
inadvertently removed in a prior rule revision. We disagree. The 
Commission sought to ``streamline the rules in [Sec.  ] 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.

[[Page 2161]]

    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 (Non-Broadband). 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

[[Page 2162]]

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, Non-Interconnected VOIP Providers, 
Shared-Tenant 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, Non-Interconnected 
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,

[[Page 2163]]

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

[[Page 2164]]

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

[[Page 2165]]

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 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. (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

[[Page 2166]]

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 air-ground 
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 Air-Ground 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

[[Page 2167]]

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

[[Page 2168]]

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

[[Page 2169]]

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 Sec.  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 newly-established 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 Sec.  1.736(b). Additionally, the RBAT may require that 
the parties participate, if appropriate, in pre-filing settlement 
negotiations or mediation under Sec.  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

[[Page 2170]]

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 Sec.  1.1411(c)(4) and new Sec.  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 
Sec.  1.1411(c)(4) and new Sec.  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

0
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.


0
2. Delayed indefinitely, amend Sec.  1.1411 by adding paragraph (c)(4) 
to read as follows:


Sec.  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

[[Page 2171]]

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.
* * * * *


Sec.  1.1415   [Redesignated as Sec.  1.1416]

0
3. Redesignate Sec.  1.1415 as Sec.  1.1416.

0
4. Delayed indefinitely, add a new Sec.  1.1415 to read as follows:


Sec.  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 Sec.  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 Sec.  1.737, use of the Accelerated Docket, and/or 
other appropriate action. Although RBAT-supervised mediation is 
generally voluntary, the RBAT may require that the parties participate 
in pre-filing settlement negotiations or mediation under Sec.  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 Sec.  
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 Sec.  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 Sec.  
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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>