Enhancing broadband connectivity with distributed antenna systems, small cells, and fiber is essential in today’s real estate markets. To deliver that connectivity, commercial building owners and their telecommunications vendors often need access to additional high-capacity fiber lines or need to deploy additional wireless facilities in or near their commercial properties.
Regulatory roadblocks can be serious issue, however, preventing delivery of robust broadband to tenants in a timely and cost-efficient manner.
For example, local authorities may impose a moratorium on approval of any permits to construct new fiber lines or wireless facilities, which effectively stymies needed additional broadband capacity to commercial properties. In other cases, the local regulated utility company may prevent the building owner’s telecommunications vendor from accessing nearby utility poles to string high-capacity broadband fiber lines, even though stringing above-ground broadband fiber on those poles would be much cheaper and quicker than an underground fiber construction project with street digging and trenching.
In August, the FCC acted to address some of these broadband infrastructure issues. Specifically, the FCC adopted a Declaratory Ruling preempting state and local moratoria on the construction of new broadband fiber and wireless infrastructure. As a result, city and state authorities cannot legally impose express or implied moratoria on broadband construction to serve commercial properties.
In addition, the FCC streamlined the process of attaching telecommunications infrastructure to utility poles, ducts, conduits and rights of way. The FCC’s Order adopted new federal “one-touch make-ready” or “OTMR” rules for simple attachments to utility poles and adopted better rules for more complex pole attachments. The FCC’s actions should reduce the time and the costs of constructing broadband fiber, 5G, DAS, and IoT networks serving commercial real estate buildings and commercially-owned public venues.
FCC Preempts Local Laws Against Construction of Broadband Infrastructure to Buildings
The FCC’s Declaratory Ruling preempts both express state and local moratoria against the deployment of new wireless or wireline facilities or services, and de facto moratoria such as dilatory tactics by local authorities that effectively block processing or approval of construction applications. Broadband providers facing such local or state moratoria may seek an FCC or court order to invalidate the local moratorium and to direct local authorities to take appropriate action.
FCC Rules Aid Construction of Broadband Infrastructure to Buildings Using Local Utility Poles
The FCC’s OTMR rules allow the telecommunications provider servicing commercial real estate properties — which has the strongest incentive to ensure construction is timely and cost-efficient — to oversee the process for attaching fiber and wireless facilities to the poles. These rules improve the process in many ways, including:
- Shorter and clarified deadlines for the utilities’ application review, surveys and notices prior to commencement of make-ready work;
- Shorter timeframes for existing attachers and utilities to prepare the pole for the make-ready work;
- Use of a single utility-approved contractor to conduct surveys and perform make-ready work; and
- Enhanced self-help remedies if the utility or existing attachers fail to meet their deadlines.
The FCC also improved the process for telecommunications providers with more complex pole attachment projects in several ways, including:
- Clarifying and improving the pole attachment application process;
- Shortening the deadline for completion of make-ready work by the utility;
- Establishing self-help remedies, including self-help rights when the utility has failed to complete the make-ready order;
- Codifying that new attachers are not responsible for remedying pre-existing safety, reliability or pole owner construction standards; and
- Requiring detailed estimates and final invoices of make-ready costs.
The FCC’s actions, as well as upcoming rules on small cell deployment and CBRS spectrum, should significantly enhance broadband capacity and coverage deployments within commercial buildings, corporate campuses, and at public venues.
Mark J. O’Connor is special counsel at the law firm of Phillips Lytle, LLP. He concentrates his practice on telecommunications law, and has extensive experience representing clients on wireless and wireless matters the FCC, state regulatory authorities, and federal courts. Prior to joining Phillips Lytle, Mr. O’Connor led the business development affairs of a small wireless equipment manufacturer. He can be reached at (202) 617-2732 and mo’email@example.com.