Draft Infrastructure Proposals Ratchet Down on Pole Attachments and Technology Transitions

Last week the FCC released a draft Notice of Proposed Rulemaking (NPRM) and Notice of Inquiry (NOI) that it plans to adopt at its April 20 Open Meeting.  The FCC draft is responsive to the interests of wireless carriers, cable companies and incumbent local exchange carriers.  Overall, the pole attachment proposals would have a detrimental effect on utility operations and cost recovery, including lowering the pole attachment rate, reducing make-ready fees, shortening make-ready deadlines, proposing make-ready deadlines, and proposing a one-touch make-ready system.  The FCC Draft also proposes major changes to the FCC’s 2015 and 2016 Technology Transition Orders, including a proposal to eliminate notice of planned copper retirements to residential and business customers.

Environmental and Historic Reviews for Towers

Last week the FCC announced it will undertake a comprehensive review of the legal framework for infrastructure deployment rules, including the environmental (NEPA) and historic preservation (NHPA) review processes currently required for communications towers.  The FCC’s Wireless Bureau released a draft Notice of Proposed Rulemaking (NPRM) and Notice of Inquiry (NOI) to seek comment on how the current local, State, and Commission rules and processes affect the speed and cost of infrastructure deployment, and ideas for improving those processes.  The NPRM also seeks comment on whether to exempt pole replacements, rights of way, and collocations from the historic review process.  The NPRM and NOI will be voted on by the Commission during its Open Meeting on April 20. 

FirstNet Awards Nationwide Contract to AT&T

FirstNet announced that AT&T has been awarded the contract to build the $46.5 billion Nationwide Public Safety Broadband Network for America’s first responders.  AT&T will be responsible for building, deploying, operating and maintaining the network over the next 25 years while also integrating FirstNet users into the company’s network assets reportedly valued at $180 billion.  Days before FirstNet’s announcement, Colorado issued an RFP for an alternate coverage plan.  Colorado is the fifth state to issue an RFP for a FirstNet alternative, which could give it a way to opt out of the AT&T contract and maintain an alternative Radio Access Network within the State. 

Mid-Flight Drone Identification

Michael Huerta, Administrator of the Federal Aviation Administration, announced the FAA’s plan to launch a committee to create standards to allow public safety entities to identify drones mid-flight.  Huerta stated he hopes the efforts of the committee will eventually result in agency rulemaking to significantly expand drone capabilities.  According to the FAA’s most recent Aerospace Forecast, the number of drone numbers are expected to triple over the next five years to over 3.5 million units by 2021. 

D.C. Circuit Strikes Down FCC Fax Rule

Last week, the U.S. Court of Appeals for the D.C. Circuit issued an Order finding an FCC rule regarding fax advertisements unlawful to the extent that it requires opt-out notices on solicited faxes (in addition to unsolicited faxes).  The Telephone Consumer Protection Act (TCPA) generally prohibits unsolicited faxed ads unless the sender has an established business relationship with the recipient, the recipient voluntarily provided the number, and the fax includes an opt-out notice. The Court held that the FCC does not have authority to extend the opt-out requirement to solicited faxes (i.e., those sent with the recipient’s permission).  The ruling could help reduce TCPA “junk fax” litigation.  A separate consolidated appeal of the FCC’s 2015 TCPA Declaratory Ruling and Order pertaining to automated calls and text messages is still pending before the D.C. Circuit.