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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations company poles to provide broadbandonly service. USTelecom cites a November 2019 report stating that at least 96% of the broadband market was served by companies that either provided telecommunications services or operated a cable system. Further, we agree with ACA Connects that ISPs will continue to offer commingled services for the foreseeable future because ISPs have an incentive to offer as many services as possible over their networks to achieve efficiencies and maximize revenues, and thus very few providers only offer over their networks standalone broadband service. In fact, NCTA argues that a reason broadbandonly providers are particularly rare is precisely because triple-play services are both popular with subscribers and beneficial to providers. Notably, multiple commenters agree that the majority of existing ISPs offer commingled services. Further, ISPs may gain the status of telecommunications providers, and thus become eligible for section 224 pole attachment rights. Our experience with the substantial participation in the Connect America Fund CAF Phase II universal service support auction and, more recently, our Rural Digital Opportunity Fund Phase I
auction demonstrates that providers are willing or able to become telecommunications carriers when they find it beneficial. 220 applicants qualified to bid in the CAF Phase II
auction, and as of September 2020, 192
of 194 winning bidders had been designated as ETCs in 45 states and been authorized to begin receiving support. The Rural Digital Opportunity Fund auction imposed similar ETC
designation requirements on applicants.
Bidding in the Rural Digital Opportunity Fund Phase I auction is scheduled to begin on October 29, 2020, and the Commission received 505
applications to participate. As another option, a broadband-only provider may also partner with an existing cable or telecommunications provider to invoke section 224 protections.
63. Although we agree that timely access to utility poles is a competitive bottleneck, based on the record, we are convinced that reclassification does not significantly limit new entrants to the marketplace or the effectiveness of the Commissions recent one-touch-makeready rules. Broadband-only providers now have the regulatory flexibility to enter into innovative and solutionoriented pole attachment agreements with pole owners. Indeed, Southern Company notes that its operating companiesGeorgia Power, Alabama Power, and Mississippi Power
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routinely enter into pole license agreements with entities that are neither cable television systems nor telecommunications carriers and the negotiation of these pole license agreements is often more efficient than negotiation of pole license agreements with cable television systems or telecommunications carriers because the prospective licensee appears to be more interested in a deal that works than they are interested in ensuring that any perceived regulatory rights are reflected in the agreement. Further, since the adoption of the Restoring Internet Freedom Order, there is only limited evidence in the record that a small number of broadband-only providers have experienced increased costs to obtain access to poles, and there is also evidence that such costs or other barriers have not increased. For instance, Southern Company explains that its operating companies have not increased pole attachment rates or prohibited a broadband provider from attaching equipment following the Order and that it must answer to a state public service commission when it comes to the lease of property capitalized within the rate base. Only WISPA provides some isolated and anecdotal examples of higher pole attachment rates, but fails to demonstrate the existence of a widespread problem. Indeed, WISPA
emphasizes that these few incidents do not outweigh the overall positive impact of Title I reclassification for its members. Although some commenters contend that the reclassification has adversely impacted broadband-only providers, they largely fail to provide data or specific examples that connect the Restoring Internet Freedom Order to a rise in pole attachment rates or denials of pole access. For instance, while Google Fiber states that, prior to the Title II Order, negotiations over pole attachment agreements with pole owners were difficult and time consuming, and it had to be willing to pay higher rent than cable operators and telecommunications providers, as commenters note, Google does not provide examples of similar negotiation and rate difficulties since the adoption of the Restoring Internet Freedom Order.
Notably, Google merely speculates that it may find itself with no right to use one-touch make-ready OTMR
procedures in a given market. Google Fiber advocacy at the time suggests that it anticipated accruing benefits from our adoption of OTMR. Google Fiber strongly supported OTMR adoption in the 2018 Wireline Infrastructure 83 FR
46812, Sept. 14, 2018 proceeding,
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despite the fact this proceeding occurred after we reclassified broadband as an information service in the Restoring Internet Freedom Order.
Google Fiber also had a representative on the Broadband Deployment Advisory Committee who voted in favor of its report recommending that the Commission adopt OTMR. We find this speculation unconvincing and, to the contrary, agree with ACA Connects members that over time, new and existing attachers, as well as pole owners, will find it to their advantage to use the OTMR process, making it an industry standardregardless of whether an attacher has section 224
rights.
64. Further, despite its concerns that pole owners will use the reclassification of broadband internet access service as an information service to delay and even block new deployments by broadband-only providers, Google acknowledges that before broadband internet access service was classified as a telecommunications service, it was able to enter into such agreements with utilities. Southern Company confirms that in February 2014, Google Fiber first approached Georgia Power about a pole license agreement and by December 15, 2014, the parties had fully executed their agreement. Notably, although Google Fiber repeatedly emphasizes the unfairness of its inability to take advantage of pole access rights for cable operators under section 224, NCTA contends that Google Fiber could, in fact, be classified as a Title VI cable service due to its video offering, but has taken the position that its video offering is not a cable service in order to avoid regulatory burdens under Title VI.
65. The limited impact of the loss of section 224 rights for broadband-only providers is further diminished by the fact that states have the ability to reverse-preempt the Commissions rules under section 224cand a substantial minority have in fact done so. As multiple commenters note, our Title I
classification does not impact the 24
states and the District of Columbia that have chosen to reverse-preempt our rules. Therefore, if a state prefers to adopt a different regulatory approach, that state has the opportunity to exercise its authority to expand the reach of government oversight of pole attachments, and several states that have reverse preempted currently regulate pole attachments by information service providers. The Restoring Internet Freedom Order does not disturb the authority of states that have reverse preempted to assert such jurisdiction or prevent states that have not reverse
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