Feature Article

August 16, 2010

Fiber on the Poles: The Final Frontier

The Recovery Act NTIA winners are waiting for millions of dollars of stimulus funding.   The NTIA winners receiving the largest grants will install fiber on thousands of miles of poles.  These NTIA fiber winners will be the new competitors to the ILECs who own the poles.  The FCC is trying to address the pole problem head on.  It will not be an easy problem to solve.

The NTIA fiber winners are anxiously waiting for the NTIA to issue the checks to start the three year race and hang their first mile of fiber.  Cellco’s and their backhaul partners are also looking to install DAS and fiber backhaul for new 4G LTE radios.  However, no fiber will be installed until pole attachment agreements are signed, pole surveys are conducted by pole owners determining make ready costs, make ready is completed requiring many new poles, and the utility pole owner permits the installation.   The pole attachment process is ripe for delay and overcharging.

The FCC and 21 states regulate pole attachments.  The Telecom Act of 96, 47 USC 224, addresses the pole attachment rates. So does FCC Rule Sec. 1.1401-1.1418 This is the FCC formula for determining the pole attachment rate:

 

Pole attachments are regulated because poles are a monopoly product. Only one company can own a pole in the same location.  There is no room in the public right of way for two or three poles in the same location.  There are 35 poles per mile typically.  Whoever owns the poles has control over new fiber entrants.  Once a pole is “full” there can be no more competitors hanging fiber on a pole.  Typically the limit is 3-4 providers on the pole.  The ILEC and the local cable company have been on the poles for years.  New comers are often not welcome.   Although the new fiber provider pays the regulated rate, which is different depending on the declared use of the fiber, the owner of the pole, if an ILEC, may have a strong incentive to delay or keep the cost high for new market entrants.   Make ready, for example, could range as high as $25,000 per mile and require replacing multiple poles.

The FCC recognized the competitive problem the utility pole owners present to the new fiber providers and addressed the issue in the National Broadband Plan.  The FCC spent 15 pages in the National Broadband Plan discussing pole attachment issues. Then, on May 20, 2010, the FCC released a 99 page Further NPRM addressing pole attachments in detail: “A National Broadband Plan for Our Future Implementation of Section 224 of the Act.” The NPRM recognized the importance of timely access to poles.  The May 20, 2010 FCC press release underscored the problem to be addressed:

Currently, access by service providers to poles can be slow, costly, and mired in long disputes.

The FCC staff sited a pole complaint where the company:

“…has been working since February 2008 to build the network necessary to provide a WAN network for a school district, and is still waiting for the pole owner to complete make ready work. As a result of this delay, the school district has not been able to conduct standardized testing online as it had hoped and planned to do.”

If this experience is the norm and not the exception, then more regulation smoothing the way for NTIA grant winners and 4G wireless backhaul is needed.

Under current regulation, cable companies pay a lower rate than telecommunications companies, and CLECs pay a lower rate that ILECs.  If a company is not a telecommunications, cable, or wireless company, like an ISP or broadband provider, the FCC pole attachment rules do not apply.   ISPs must file Form 477 and are subject to CALEA, but ISPs cannot get on the poles without being CLECs.

Because 78 percent of homes have only 2 broadband competitors, it is absolutely necessary for the FCC to carefully regulate the availability of access to the pole and speed of completing the fiber project.  You can see the competitive bottleneck problem by looking up at a pole outside your home and see the 2-3 providers. There is typically little room on the poles for another provider.  The FCC’s job is to encourage broadband competition, and pole regulation is the way to accomplish this task.  Comments to the NPRM on pole attachments are due on August 16, 2010.

To learn more, register for Carl Ford’s Pole Attachments 101: Even for Wireless we need them 4GWE webinar on pole attachments scheduled for August 18, 2010. I will be the moderator and the panelists will include Marty Stern at K&LGates, Mike McNally, CEO, Maverick Construction, and Sandy Bendremer, VP Galaxy Internet. 

Click here to register.


Barlow Keener, attorney with Keener Law Group, writes the Law & Regulation column for MobilityTechzone. To read more of Barlow's articles, please visit his columnist page..

Edited by Stefania Viscusi


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