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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
effects of the Restoring Internet Freedom Order likely will help enable the deployment of rural broadband and 5G
technologies that benefit the entire economy and will help close the digital divide. We thus conclude that the overall benefits of the Restoring Internet Freedom Order including to public safety clearly outweigh any harms to public safety.

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B. Pole Attachments 57. The Mozilla court directed us to grapple with the lapse in legal safeguards that results from reclassification eliminating section 224
pole attachment rights of ISPs that lack a commingled telecommunications service or cable television system i.e., broadband-only providers. For the reasons below, we find that the benefits of returning to the light-touch information service classification adopted in the Restoring Internet Freedom Order far outweigh any limited potential negative effects resulting from the loss of section 224 rights for broadband-only ISPs.
1. Section 224 Authority 58. The Commission has broad authority under section 224 of the Act to regulate attachments to utilityowned-and-controlled poles, ducts, conduits, and rights-of-way. Section 224
defines pole attachments as any attachment by a cable television system or provider of telecommunications service to a pole, duct conduit, or rightof-way owned or controlled by a utility. It authorizes us to prescribe rules to ensure that the rates, terms, and conditions of pole attachments are just and reasonable; require utilities to provide nondiscriminatory access to their poles, ducts, conduits, and rightsof-way to telecommunications carriers and cable television systems collectively, attachers; provides procedures for resolving pole attachment complaints; governs pole attachment rates for attachers; and allocates make-ready costs among attachers and utilities. The Act defines a utility as a local exchange carrier or an electric, gas, water, steam, or other public utility, . . . who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications.
However, for purposes of pole attachments, a utility does not include any railroad, any cooperativelyorganized entity, or any entity owned by a federal or state government. Section 224 excludes incumbent local exchange carriers from the meaning of the term telecommunications carrier, therefore these entities do not have a mandatory
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access right under section 224f1. The Commission has held that when incumbent local exchange carriers obtain access to poles, section 224
governs the rates, terms, and conditions of those attachments. The Act allows utilities that provide electric service to deny access to their poles, ducts, conduits, or rights-of-way because of insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes.
59. The Act nonetheless only gives the Commission limited authority. It exempts from our jurisdiction those pole attachments in states that have elected to regulate pole attachments themselves, referred to as reverse preemption states. Twenty-four states and the District of Columbia have elected this reverse preemption, leaving our rules to govern pole attachments in 26 states and the U.S. Territories.
Section 224 also does not cover poles owned by municipalities, electric cooperatives, railroads, or the Federal or state governments.
2. The Benefits of Reclassification Outweigh Any Potential Drawbacks for Broadband-Only ISPs 60. Based on the record, we find that the benefits of returning broadband internet access service to its historical information service classification outweigh any potential adverse effects resulting from the loss of pole attachment rights under section 224 for broadband-only ISPs. First, we find that any drawbacks of reclassification are limited because in the areas where federal pole attachment regulation applies, almost all ISPs pole attachments remain subject to section 224, as they commingle cable or telecommunications services with their broadband services. Second, we conclude that the benefits of reclassification for broadband-only providers outweigh any limited pole attachment-related drawbacks they faceand the overall benefits of reclassification outweigh the drawbacks of broadband-only ISPs attachments no longer being subject to section 224.
61. Drawbacks of Reclassification Are Limited. Section 224 applies to attachments of cable television systems and providers of telecommunications services, but not to providers of only information services. As the Commission has previously clarified, however, where the same infrastructure would provide both telecommunications and wireless broadband internet access service, the provisions of section 224 governing pole attachments would continue to apply to such infrastructure used to provide both
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types of service. This determination is consistent with the U.S. Supreme Courts decision in NCTA v. Gulf Power Co., in which the Court held that the protections afforded by section 224 to cable attachments remain in place when a service provider uses the same facilities to offer broadband internet access service to its subscribers. Thus, in non-reverse preemption states, the protections afforded by section 224 to cable television systems and providers of telecommunications service remain in place when a service provider uses the same facilities to offer broadband internet access service to its subscribers. Only the few ISPs that do not offer cable or telecommunications services over the same network would not be able to avail themselves of the protections Congress established in section 224 and the Commissions implementing rules.
62. We find that the vast majority of subscribers are served by ISPs that provide either cable or telecommunications services over their networks and therefore remain able to take advantage of the rights guaranteed by section 224 after the reclassification of broadband internet access service as an information service. Public Knowledge et al. claim that AT&T may soon cease to provide a telecommunications service or a cable television service, and as a result, the entire AT&T network will no longer be eligible for pole attachment rates and AT&T may no longer qualify as a LEC.
Speculation regarding a single provider is insufficient to justify changing our course. Further, in the attachment on which Public Knowledge et al. rely, AT&T merely sets forth a plan to grandfather DSL a legacy information service. The document specifically states that customers that wish to retain plain old telephone service a telecommunications service may do so, and Public Knowledge et al. do not provide any evidence that AT&T plans to discontinue any telecommunications services offered over any of its facilities.
Carriers must obtain Commission approval prior to discontinuing telecommunications services, and interested parties would have an opportunity to object to any proposed continuance. The record overwhelmingly confirms our conclusion. According to ACA
Connects, all of its members commingle broadband with either or both a cable or telecommunications service over the same network.
Likewise, the Edison Electric Institutes members report that at this time very few ISPs seek to attach to electric
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