The FCC has adopted a Third Report and Order and Declaratory Ruling fundamentally reforming the federal framework governing pole attachments. The FCC adopts a “one-touch make-ready” (OTMR) process that allows new attachers to perform all work necessary to prepare a pole for a new attachment for simple make-ready attachments in the communications space on a pole. The FCC believes that the OTMR framework will speed the process and reduce the costs of attaching new network facilities to utility poles by allowing the new attacher, the party with the strongest incentive, to perform all necessary work itself, rather than spreading the work across multiple parties. However, the OTMR process will not apply to more complicated attachments, or above the communications space of a pole, where safety and reliability risks are greater. The FCC also adopts other reforms including codifying its existing precedent that requires utilities to allow “overlashing” to maximize usable space on the pole without prior approval but with advance notice, clarifying that new attachers are not responsible for the costs of repairing preexisting safety violations, and eliminating disparities in pole attachment rates paid by incumbent local exchange carriers and other similarly-situated telecommunications attachers. The FCC also provides notice that it will preempt state and local laws on a case-by-case basis that inhibit the rebuilding of broadband infrastructure after a disaster. And, in its Declaratory Ruling, the FCC concludes that state and local moratoria, both express and de facto, on telecommunications services and facilities deployment are barred by Section 253(a) of the Communications Act because they prohibit or have the effect of prohibiting the provision of telecommunications services. Moreover, such moratoria are generally not protected by the exceptions to the Section 253(a) prohibition.
