Dig once is OK, dig never is not, FCC says

by Steve Blum • , ,

The Federal Communications Commission fired a shot across the bow of local governments last week, when it published a draft version of a “declaratory ruling” that, as the name implies, declares that moratoria that block broadband deployment violate federal law.

The ruling is primarily concerned with permits to build wireless facilities – cell sites, for the most part – and to install broadband infrastructure, such as conduit, in the public right of way. Some cities refuse to process permit applications for particular, broadband-related projects, the FCC draft says, either because they have formally decided not to – imposed a moratorium, in other words – or because they just sit on applications they don’t like and, in effect, create a de facto moratorium.

Some moratoria, though, are intended to promote broadband infrastructure deployment, and the FCC draft fudges that issue…

Some “street-cut” requirements, which providers sometimes refer to as moratoria, are not designed to thwart construction, but to promote “dig once” policies “in order to preserve the roadway and incentivize interested providers to deploy telecommunications conduit,” and would not qualify as unlawful moratoria if the state or locality imposing such street-cut requirements does not bar alternative means of deployment such as aerial lines or sublicensing existing underground conduits.

Assuming the FCC adopts the draft – as it almost certainly will – the immediate effect will be minimal. The commission would be placing “states and localities on notice” and provide them “the opportunity to ensure that their requirements comply with federal law”. Should they be so ungrateful as to not heed this advice, ultimate enforcement of the declaration would still be in the hands of courts, either directly or via an appeal of any future FCC orders preempting specific local laws. At this point, the FCC says it wants to “inform judicial resolution”.

The declaratory ruling is one item in a larger package of draft rules, that include formal a one touch make ready (OTMR) process, that lets a new broadband company put cables on poles without having to wait – sometimes forever – for incumbents to finish making the pole ready. It won’t have a direct effect in California, though. It only applies to states that use the default federal regulations for managing pole attachment. Here, the California Public Utilities Commission sets pole attachment rules.