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Telephone, Email, Morse Code, or Smoke Signal
In the world of joint use, where different companies access and use a utility pole, a rare and special language is spoken. Spoken correctly, this language can protect and save the lives of line technicians, the public, and the careers of shareholders. It can direct pole owners and attachers to provide our commerce and citizens with the tools to advance in the technology race. But the lightning fast-growth in attacher demands have created a blur of activity. This has resulted in immediate burdens and liabilities for pole owners that will only increase in volume. The need for effective communication among all parties is critical.
Regulations govern everything we do with utility poles, sometimes hindering that communication. Over the past decades, we have gotten used to a way of doing this that is comfortable but cannot support recent surges in demand. On a federal level, the Federal Communications Commission (FCC) dictates the regulations that affect joint use day to day. Given the increasing pressure put on both pole owners and attachers by spikes in demand, the FCC has been releasing new regulations that are shaking up the industry. From the perspective of joint use, these rulings can mean a whole new way of doing business. Here we will use the joint use lens to explore and help clarify two key rulings that will become effective in 2019; One Touch Make Ready and Overlashing.
Before jumping into the regulations themselves, we need to understand some of the key economic drivers behind such an impactful ruling. The number of connected people in the U.S. is constantly growing and expectations around internet speed and performance are growing with it. Cisco estimates that in the U.S., consumer-fixed internet traffic will grow at an annual rate of 23 percent until 2021. Further estimates by Cisco show that all residential customer IP traffic will grow from 55 percent to 61 percent by 2020.
As that traffic grows, the profitability of deploying next-generation networks continues to increase. A Corning Inc.- funded study cited by the FCC modeled some of the potential impacts of FCC regulation accelerating pole attachment timelines:
To put it simply, Internet demand is on the rise, it is becoming more economical to provide internet access, and communications infrastructure providers are going to be the ones to pay for it. The bottleneck for a safe expansion to accommodate the increased traffic then falls on effective regulation around joint use.
With the Third Report and Order and Declaratory Ruling, which was issued in August 2018 and became effective October 2018, the FCC launched an aggressive course of action to remove barriers to deployment of new attachments. The focus of this ruling is to speed up the process of attaching and to reduce associated costs through lowering barriers and incentivizing parties. However, it should be noted that the Order has not been universally agreed upon by all affected parties. Seven utilities from across the U.S. petitioned the FCC during the reconsideration phase to amend the Order, and several other utilities have gone to the courts to have it overturned. Objections to the Order vary from concerns over safety and reliability issues to ensuring that newly imposed regulations are in accordance with existing rules, to safeguarding equitable treatment of all stakeholders.
Though the Order became effective in 2018, unless it is modified by the FCC or reversed by the court system, a significant portion will be actionable in 2019. This includes:
When wireless and broadband companies look to deploy infrastructure on poles owned by utilities or another incumbent owner, the complexity of work involved is enormous. This is largely due to the need for coordination among multiple entities. In the past, the responsibility to ensure proper and safe attachment was disbursed among all attaching parties and the pole owners. The ability to coordinate the movement of facilities was exceedingly challenging. The One Touch Make Ready (OTMR) rule tries to simplify this process by placing work and cost burdens on the new, requesting attacher, enabling them to singularly perform all the make-ready work.
However, this rule applies only to simple, make-ready work in the communications space. Simple make-ready means make-ready work on existing attachments in the communications space of a pole that can be transferred without any reasonable expectation of a service outage or facility damage. In addition, simple make-ready work must not require the splicing of any existing communications attachments or the relocation of an existing wireless attachment.
Despite this limitation, utilities objecting to One Touch Make ready contend that the rule will place additional burdens on the pole owner for expedited reviews of applications, as well as for expedited post-inspections and remediation of damage or code violations. They also assert that allowing communications companies to perform OTMR construction work on electric distribution system poles is extremely dangerous to public safety and in contradiction to OSHA requirements.
Overlashing is the process of physically tying additional cables to cables already attached to a utility pole. With the Order, attaching entities will no longer need prior approval from utility pole owners for third-party overlashing. In addition, the pole owner will no longer be allowed to prohibit overlashing on existing attachments due to preexisting violations, nor charge a new attacher to fix violations they did not cause. Despite the Order, though, the National Electrical Safety Code Rule 235H (2) and some state-specific pole attachment regulations effectively require prior pole owner approval for third-party overlashing.
However, there are ways to maintain quality and safety control. Pole owners can control how they are notified about overlashing and the content of that notification. They are protected if they require a photographic record verifying the proposed overlashing. If there are violations, action must be taken swiftly as the Order will also require a pole owner to give notice to stop overlashing within 15 days of the pre-notification.
In their petition for reconsideration to the FCC, the Coalition of Concerned Utilities, which serves customers in more than 19 U.S. states and the District of Columbia, contend that by restricting utility oversight of overlashing activity to the extent it does, considerable risks to safety and service reliability are at stake. They suggest several amendments, including removing the exemption on preexisting violations.
With growth, comes growing pains. There are several ways the joint use community can work together to minimize the pains from new regulation and build trust between pole owners and the companies performing OTMR and overlashing:
Improved ways of communicating will lead to meeting more needs faster. The joint use community has already made great strides and even greater progress can be realized with the continued integration of trust and partnerships across utilities, service providers and governmental institutions.
One Touch Make Ready and Overlashing don’t have to result in constant headaches for those of us working in joint use. Understanding the regulations and how the various parties involved view them can help facilitate effective communication to make joint use attachment as painless as possible as we enter a new age of connectivity.