On September 18, 2017, the Federal Communications Commission (“FCC”) released a Notice of Proposed Rulemaking (“NPRM”) that would significantly change the procedural rules governing formal pole attachment complaint proceedings filed under Section 224 of the federal Communications Act (47 U.S.C. § 224). The FCC has included the proposed changes in a broader rulemaking aimed at consolidating, revising, and streamlining rules currently governing formal complaints for pole attachments (Section 224), common carriers (Section 208), and communications accessibility (Sections 255, 716 and 718) (“ACS”), in order to enable parties and the FCC to “more promptly and efficiently resolve” disputes.
Specifically, the FCC is considering the following changes to the procedural rules governing pole attachment complaint proceedings, which would appear at 47 C.F.R. §§ 1.720, et seq.):
- Ability of parties to request inclusion of pole attachment complaints (subject to staff approval) in the Accelerated Docket for resolution within 60 days.
- A shot clock that would require the FCC to resolve complaints within a defined time period, possibly subject to some circumstances that would pause the clock, similar to the 180-day shot clock it proposed in the Accelerating Wireline Broadband Deployment proceeding.
- Discovery as of right including up to 10 interrogatories along with complaints, 10 with answers, and 5 additional with replies. Under the current process, parties must first seek permission before serving any discovery, and it has been only lightly used. While this proposed change should promote the early development of any necessary factual record, the FCC acknowledges the potential for discovery disputes and attendant motion practice to extend proceedings.
- Information Designations that would mandate both parties to identify with each pleading the individuals likely to have information “relevant to the proceeding” and produce or describe all documents relevant to the facts alleged that the party possesses. The FCC’s proposal is broader than FRCP 26(a), under which federal court “initial disclosures” only require preliminary and more limited descriptions or disclosures of witnesses and documents.
- A shortened reply schedule of 10 days (down from 20) from service of the answer.
- Formalized authority for FCC staff to require status conferences after the answer is filed, rather than the current practice of requiring agreement from the parties in most pole attachment complaint proceedings.
- Remove the current requirement at 47 C.F.R. 1.1404(g) that each element of the traditional pole rate formula be included in the pole attachment complaint, and only require that the complainant “state with specificity” the rate, term or condition claimed to be unjust or unreasonable.
The proposed rules would also retain certain practices in the pole attachment rules (such as the requirement for pre-complaint executive level settlement discussions) and extend them to common carrier and ACS disputes.
The proposed reforms could create a more effective and expeditious means for addressing disputes over pole attachment rates, terms, and conditions as well as advance broadband deployment. Under current processes, pole attachment complaints can remain unresolved for years. These improved procedures may provide a greater incentive for pole owners to resolve disputes and avoid formal complaints. Although these procedural proposals would apply to complaints under Section 224, Section 208 and accessibility provisions, the FCC would retain specific pole attachment rules with some proposed modifications (47 C.F.R. §§ 1.1401, et seq.) that are necessary to resolving those specialized types of complaints.
Comments to the proposed rules are due within 30 days after publication in the Federal Register; reply comments are due 45 days after publication in the Federal Register.
Update: The NPRM was published September 25, making comments due on or before October 26, 2017, and reply comments due on or before November 13, 2017.