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INCOMPAS Predicts Prompt Action on Net Neutrality



Screenshot from the webinar

November 16, 2020 – Officials associated with INCOMPAS, the Internet and Competitive Networks Association, on Thursday predicted that there would be action on net neutrality sooner than expected with the incoming administration of President-elect Joe Biden.

Predicting that the new administration would try to reinstate authority over broadband internet access, Lindsay Stern, attorney and policy advisor at INCOMPAS, said a Democratic Federal Communications Commission would try to classify the internet service as a telecommunications service subject to Title II of the Communications Act, “with the previous forbearance that was granted in the 2015 Open Internet Order” under President Barack Obama.

Stern explained that to do this, the FCC would need to grant a petition for reconsideration of the FCC’s latest remand order which classified broadband internet access service as a Title I service. The agency would also need to issue a separate rulemaking, going a step further from reclassifying to reinstating the net neutrality rules, she said.

With ISP’s implementing data caps more than in the past, Stern predicted that now, there will be pressure to go beyond the 2015 net neutrality rules and address data caps and interconnection fees directly.

Stern postulated that if FCC Chairman Ajit Pai leaves, and with Commissioner Michael O’Rielly gone by the adjournment of Congress this year, and with Nathan Simington’s nomination does not get confirmed, Democrats would end up with a 2-1 vote majority at the agency.

Commissioner Jessica Rosenworcel and Commissioner Geoffrey Starks, the two Democrats on the five-member body, are both net neutrality supporters.

Because the remand order of the current FCC action on net neutrality has not yet made it into the Federal Register, which publication starts the timeline an entity to file a petition for reconsideration, it looks likely that Chairman Pai will not have time to respond to a petition for reconsideration by January 20, 2021.

That accelerates the timeline for net neutrality, Stern said.

However, if the FCC takes the Title II approach that former FCC Chairman Tom Wheeler took under Obama, that might create momentum for Congress to act.

INCOMPAS CEO Chip Pickering, a former Republican member of Congress from Mississippi, said that congressional intervention would provide long-term stability and certainty instead of four changes we’ve seen over the past decade with each new administration.

Pickering also projected bipartisan consensus on privacy regulations and Section 230 from the new administration. But coming to an agreement on antitrust enforcement will be much harder, he said, given the endurance of the consumer welfare standard.

Gaming out strategy over the next two months on Section 230 changes

On Section 230 reform, Stern said INCOMPAS thinks with a new Democratic commission, President Donald Trump’s petition by the Commerce Department’s National Telecommunications and Information Administration will be denied or just linger at the FCC: Both Rosenworcel and Starks have repeatedly said that the FCC should not be interpreting 230 and hence be the “president’s speech police.”

That said, the FCC might leave the petition open for the possibility of future action in case there’s no congressional agreement, she said.

INCOMPAS General Counsel Angie Kronenberg said the “pens down” edict recently issued by House Energy and Commerce Committee officials might also affect Section 230 changes.

Stern laid out several scenarios: If Pai wants to move forward with the rulemaking, and if Simington’s nomination does not move forward, the petition would have to be addressed in the commission’s December meeting because Commissioner O’Reilly would still have to vote on it despite his leaving at the end of the year.

If Simington does get confirmed and Pai has the votes for the January open meeting, she said the question would be whether the rulemaking would make it into the federal register before he leaves in order to set off the comment deadline.

Even if that happens, a new chairman does not have to act on the rulemaking at all . Or, the Democratic-named chairman could bring it the matter to a vote and then deny it.

Other broadband matters

INCOMPAS Government Relations Director Andrew Mincheff said Democrats would have an opportunity to shape broadband this administration, especially in light of Pai’s goal to end the agency’s Mobility Fund and move those dollars to the 5G Rural Broadband Fund, from which  the FCC would allocate $9 billion over 10 years for reverse auctions.

Chris Shipley, attorney and policy advisor at INCOMPAS, said the new administration would likely look at reform of the Universal Service Fund because the contributions factor has risen steadily over the last few years as accessible revenues have declined around commitments.

He referenced a conference from earlier this week with Mignon Clyburn and Commissioner O’Rielly.

Democrats have an interest in either a connections-based systems or expanding the base of accessible services

By contrast, Republicans seem more interested in addressing the rising contribution factor from general appropriations from Congress, he said. That would be a tough fight given how divided the new Congress will be.

Shipley suggested that reforms could include extending the revenue base and assessing broadband services and other telecommunications services.

Another option might be a connections-based system. Under this approach, either voice ir broadband connections would be assessed a monthly contribution, and a numbers-based system, under which each assigned North American telephone number would be assessed.

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FCC to Consider ‘Rapid Response Team’ for Pole Attachment Disputes at December Meeting

Proposed rules would also put more limits on when utilities can pass full replacement costs to telecom companies.



Photo of a utility pole by Scott Akerman.

WASHINGTON, November 28, 2023 – The Federal Communications Commission is considering setting up a “rapid response team” to resolve pole attachment disputes, according to a public draft of the proposed rules.

The Rapid Broadband Assessment Team, or RBAT, would be available to resolve disagreements that “impede or delay broadband deployment,” according to the proposed rules. The team would be responsible for quickly engaging both sides of a pole attachment dispute and working to find a solution, which can include staff-supervised mediation.

If the parties cannot come to an agreement, the RBAT can place their dispute on the commission’s “Accelerated Docket,” meaning the FCC would adjudicate the issue in under 60 days. Not all disputes are eligible for the Accelerated Docket, as the tight time constraint makes it difficult to resolve novel or complex cases.

The commission is also considering requiring utility companies to provide attachers with their most recent pole inspection information. That’s an effort to avoid disputes before they start, according to the proposed rules.

Expanding broadband networks often involves attaching equipment to poles owned by utility companies. The arrangement has led to ongoing disputes on replacement costs and other issues between telecommunications and utility companies.

The FCC has authority under the 1996 Communications Act to set the terms of those pole attachment deals and is looking to have a system in place for expediting disputes ahead of the Biden administration’s $42.5 billion broadband expansion effort. That authority only stretches to the 26 states that have not passed their own laws on pole attachments.

Pole replacement costs

On pole replacement costs, one of the more contentious pole attachment issues, the proposed rules place more limits on when a utility can force an attacher to pay in full for a replacement pole. The commission’s standing policy prevents pole owners from passing off replacement costs if the new pole is not “necessitated solely” by an attacher’s equipment.

Since the commission first sought comment on the issue in 2022, telecommunications companies have argued that utilities unfairly pass the entire cost of replacement on to them, even when poles are already unsafe and would need to be replaced regardless. Utilities say they would not normally replace the poles being used by telecom companies, either because they are structurally sound or to phase out old lines, and don’t benefit from the installation of newer poles.

The draft rules would expand the commission’s definition of a “red tagged” pole, the replacement of which cannot be allocated entirely to an attacher. Under current FCC rules, a red tagged pole is one that is out of compliance with safety regulations and has been placed on a utility’s replacement schedule.

The updated definition would do away with the compliance requirement, defining a red tagged pole as one flagged for replacement for any reason other than its inability to support extra telecom equipment.

The proposed rules also explicitly clarify some situations in which replacements are not “necessitated solely” by new telecom equipment, including when a pole fails engineering standards or is already on a replacement schedule.

In addition, the rules specify that when an already defective pole needs to be replaced with a larger pole to accommodate new equipment, the attacher would only be responsible for the extra cost of the larger pole, not the cost of an equivalent pole.

If the proposed rules are approved, the FCC would also look for comments on processing bulk pole attachment applications and on changing rules on when attachers can do their own work to prepare a pole for attachments.

The measures will be voted on at the commission’s December 13 meeting.

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FCC Aims to Combat Video Service ‘Junk’ Fees

FCC Chairwoman Jessica Rosenworcel proposes a new way to eliminate junk fees.



Photo of Jessica Rosenworcel courtesy the FCC

November 21, 2023 – The head of the Federal Communications Commission announced Tuesday a proposal to eliminate video service junk fees incurred by cable operators and direct broadcast satellite service providers.

The proposal by Chairwoman Jessica Rosenworcel would prohibit cable operators and DBS providers from charging subscribers early contract termination fees and require those providers to issue a prorated credit or rebate for remaining days in a monthly billing cycle after cancellation. 

It will be voted on at the commission’s open meeting next month. 

“Because these fees may have the effect of limiting consumer choice after a contract is enacted, it may negatively impact competition for services in the marketplace,” said a press release. 

“No one wants to pay junk fees for something they don’t want or can’t use.  When companies charge customers early termination fees, it limits their freedom to choose the service they want,” said Rosenworcel. 

In October, President Joe Biden addressed his administration’s effort to combat junk fees, part of a larger goal to provide consumers choice by way of cost reduction outlined in an executive order on which was signed into effect in July of 2021. 

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FCC to Vote on Pole Attachments at December Meeting

Telecom and utility companies have been clashing on replacement costs.



Photo of utility poles from Flickr user Chic Bee.

WASHINGTON, November 21, 2023 – The Federal Communications Commission announced on Tuesday that it will consider rules on pole attachments at its December meeting.

The commission first sought comment on the issue in March 2022. It asked stakeholders for input on how costs should be allocated when utility poles need to be replaced to accommodate new telecommunications equipment. 

Utility and telecom companies have strong positions on the issue. They have submitted over 4,100 comments to the FCC so far and are continuing to lobby, with AT&T and the cable company trade group NCTA meeting with commission staff in recent weeks.

Telecommunications companies have argued to the FCC that utilities unfairly pass the entire cost of replacement on to them, even when poles are already unsafe and would need to be replaced regardless. Utilities, for their part, say they would not normally replace the poles being used by telecom companies, either because they are structurally sound or to phase out old lines, and don’t benefit from the arrangement.

The commission has authority over the pole attachment deals between utility companies and telecom carriers. That does not include publicly owned utilities or broadband providers that solely provide internet. State laws also preempt the FCC’s authority – 24 states have their own guidelines for such deals.

FCC Chairwoman Jessica Rosenworcel said in a statement that the proposed rules would “make the pole attachment process faster, more transparent, and more cost-effective.” The commission did not respond to a request for comment on the specifics of the rules.

Lawmakers and industry groups have been pushing the commission to issue rules since the comment period ended last year. In April, more than a dozen major telecom companies pushed the commission to issue rules ahead of projects funded by the Biden administration’s $42.5 billion broadband expansion program, citing potential hold ups from pole disputes.

Canadian regulators ruled on the issue in February, requiring pole owners to bear at least half the cost to replace a pole before attaching telecom equipment. The Canadian Radio-television and Telecommunications Commission found that pole owners do stand to benefit from newer poles.

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