FCC Seeks Comments on Recent CTIA and WIA Petitions

From 9/13/19 Public Notice: https://docs.fcc.gov/public/attachments/DA-19-913A1.pdf

  • Petition for Rulemaking filed by the Wireless Infrastructure Association (WIA), a Petition for Declaratory Ruling filed by WIA, and a Petition for Declaratory Ruling filed by CTIA.

  • CTIA’s Petition for Declaratory Ruling similarly seeks clarification of rules relating to Section 6409 and also requests clarifications of rules implementing Section 224 of the Communications Act

  • Interested parties may file comments on or before the date indicated on the first page of this document. All filings must refer to RM-11849 and WT Docket No. 19-250, and if addressing issues relating to section 224, WC Docket 17-84.7 Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS).

  1. Link to Wireless Infrastructure Association (WIA) Petition for Rulemaking (filed Aug. 27, 2019)
  2. Link to WIA Petition for Declaratory Ruling (filed Aug. 27, 2019)
  3. Link to CTIA Petition for Declaratory Ruling (filed September 6, 2019).

See also

  1. Link to 9/13/19 letter from Telecom Law firm to cities, seeking to form a coalition to oppose the Petitions.
  2. Link to 9/19/19 response from the National Association of Telecommunications Officers and Advisors (“NATOA”), the National League of Cities (“NLC”), the National Association of Counties (“NACo”), the United States Conference of Mayors (“USCM”) and the National Association of Regional Councils (“NARC”) (“Local Governments”) resonse, urging the FCC to reject the Declaratory Ruling and Third Report and Order (“Order”), to be considered at the September 26, 2018 meeting.

These petitions aim to change the following U.S. Code Sections

47 U.S. Code § 1455. Wireless facilities deployment


(a) Facility modifications

   (1) In general — Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

   (2) Eligible facilities request — For purposes of this subsection, the term “eligible facilities request” means any request for modification of an existing wireless tower or base station that involves—

      (A) collocation of new transmission equipment;

      (B) removal of transmission equipment; or

      (C) replacement of transmission equipment.

   (3) Applicability of environmental laws— Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act [1] or the National Environmental Policy Act of 1969

47 U.S. Code § 224. Pole attachments


(a) Definitions As used in this section:

   (1) The term “utility” means any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State.

   (2) The term “Federal Government” means the Government of the United States or any agency or instrumentality thereof.

   (3) The term “State” means any State, territory, or possession of the United States, the District of Columbia, or any political subdivision, agency, or instrumentality thereof.

   (4) The term “pole attachment” means any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.

   (5) For purposes of this section, the term “telecommunications carrier” (as defined in section 153 of this title) does not include any incumbent local exchange carrier as defined in section 251(h) of this title.

(b) Authority of Commission to regulate rates, terms, and conditions; enforcement powers; promulgation of regulations

   (1) Subject to the provisions of subsection (c) of this section, the Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of enforcing any determinations resulting from complaint procedures established pursuant to this subsection, the Commission shall take such action as it deems appropriate and necessary, including issuing cease and desist orders, as authorized by section 312(b) of this title.

   (2) The Commission shall prescribe by rule regulations to carry out the provisions of this section.

(c) State regulatory authority over rates, terms, and conditions; preemption; certification; circumstances constituting State regulation

   (1) Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f), for pole attachments in any case where such matters are regulated by a State.

   (2) Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that —

      (A) it regulates such rates, terms, and conditions; and

      (B) in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services.

   (3) For purposes of this subsection, a State shall not be considered to regulate the rates, terms, and conditions for pole attachments

      (A) unless the State has issued and made effective rules and regulations implementing the State’s regulatory authority over pole attachments; and

      (B) with respect to any individual matter, unless the State takes final action on a complaint regarding such matter —

         (i) within 180 days after the complaint is filed with the State, or

         (ii) within the applicable period prescribed for such final action in such rules and regulations of the State, if the prescribed period does not extend beyond 360 days after the filing of such complaint.

(d) Determination of just and reasonable rates; “usable space” defined

   (1) For purposes of subsection (b) of this section, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way.

   (2) As used in this subsection, the term “usable space” means the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment.

   (3) This subsection shall apply to the rate for any pole attachment used by a cable television system solely to provide cable service. Until the effective date of the regulations required under subsection (e), this subsection shall also apply to the rate for any pole attachment used by a cable system or any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) to provide any telecommunications service.

(e) Regulations governing charges; apportionment of costs of providing space

   (1) The Commission shall, no later than 2 years after February 8, 1996, prescribe regulations in accordance with this subsection to govern the charges for pole attachments used by telecommunications carriers to provide telecommunications services, when the parties fail to resolve a dispute over such charges. Such regulations shall ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments.

   (2) A utility shall apportion the cost of providing space on a pole, duct, conduit, or right-of-way other than the usable space among entities so that such apportionment equals two-thirds of the costs of providing space other than the usable space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities.

   (3) A utility shall apportion the cost of providing usable space among all entities according to the percentage of usable space required for each entity.

   (4) The regulations required under paragraph (1) shall become effective 5 years after February 8, 1996. Any increase in the rates for pole attachments that result from the adoption of the regulations required by this subsection shall be phased in equal annual increments over a period of 5 years beginning on the effective date of such regulations.

(f) Nondiscriminatory access

   (1) A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it.

   (2) Notwithstanding paragraph (1), a utility providing electric service may deny a cable television system or any telecommunications carrier access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory [1] basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes.

(g) Imputation to costs of pole attachment rate
A utility that engages in the provision of telecommunications services or cable services shall impute to its costs of providing such services (and charge any affiliate, subsidiary, or associate company engaged in the provision of such services) an equal amount to the pole attachment rate for which such company would be liable under this section.

(h) Modification or alteration of pole, duct, conduit, or right-of-way
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.

(i) Costs of rearranging or replacing attachment
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).

(June 19, 1934, ch. 652, title II, § 224, as added Pub. L. 95–234, § 6, Feb. 21, 1978, 92 Stat. 35; amended Pub. L. 97–259, title I, § 106, Sept. 13, 1982, 96 Stat. 1091; Pub. L. 98–549, § 4, Oct. 30, 1984, 98 Stat. 2801; Pub. L. 103–414, title III, § 304(a)(7), Oct. 25, 1994, 108 Stat. 4297; Pub. L. 104–104, title VII, § 703, Feb. 8, 1996, 110 Stat. 149.)