en.Wedoany.com Reported - The U.S. Department of Commerce plans to expand the scope of federal pole attachment rules in its flagship broadband grant program, sparking discontent among electric cooperatives that are typically not subject to this regime.
David Brodian, Chief Counsel of the National Telecommunications and Information Administration (NTIA), defended the agency's policy during a webinar hosted by the Federal Communications Bar Association (FCBA), stating that all entities participating in the program should follow uniform rules.
The webinar focused on the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) program. Under the program's current requirements, grant recipients that own poles and are not already regulated by state law must submit their statewide facilities to the Federal Communications Commission (FCC) pole attachment regime. This means many electric cooperatives receiving BEAD funding will have to comply with FCC rules that previously typically applied only to investor-owned utilities.
The NTIA established this rule in January. Operators and their trade associations said last month that cooperatives are dissatisfied because FCC rules limit the fees they can charge telecom providers for attachments and set processing deadlines. Jim Matheson, CEO of the National Rural Electric Cooperative Association (NRECA), argued that cooperatives typically serve more challenging areas than for-profit utilities and lack profit incentives, making them less likely to use their monopoly over poles to charge unfair fees.
An NRECA member previously stated that it returned BEAD funding due to this issue. Bree Maki, Director of the Minnesota Broadband Office, noted during the webinar that three awardees in the state "declined funding for various reasons, and pole attachment was one of them." Brodian acknowledged "some initial resistance" but said the NTIA is working to prevent situations where cooperatives receiving BEAD funding charge other participants more for pole access than their own ISP subsidiaries. He made clear that anti-competitive behavior is not allowed in the program.
Phil Macres, an attorney at Klein Law Group who works with BEAD participants, expressed support for the NTIA's policy. He noted that while some cooperatives perform well, many others have exploited the fact that they are not bound by FCC rules, creating problems.
A May analysis by New York Law School found that approximately 42% of fiber miles planned for deployment using BEAD funds are aerial, and about 40% of those aerial miles will be attached to poles owned by cooperatives.
Regarding the non-deployment funding portion, Brodian said the NTIA is working to issue guidance on the use of these funds "as soon as possible." This portion exceeds $22 billion. Commerce Secretary Howard Lutnick told senators during an April 22 hearing that the guidance is planned to be released "within the next two months," with a target date around June 22.
States are currently finalizing contracts with BEAD awardees, and permitting and construction work is gradually underway. Panelists from ISPs and state broadband offices noted that the NTIA requires these contracts to be standardized across all BEAD awardees in a state, leaving little room for modification. Emily Hale, Deputy Director of the Tennessee Broadband Office, said the state's approach is to allow ISPs to provide written clarifications of certain terms if they wish, rather than modifying the grant agreements.
Additionally, a new proposed rule issued by the White House Office of Management and Budget (OMB) would effectively prohibit milestone-based payments like those used in BEAD. Alexis Schrubbe, a broadband expert and project manager at Ready.net, wrote that if the rule is adopted, it could require states to renegotiate agreements. Public comments on the proposal are due by July 13. Christian Hoefly, Senior Corporate Counsel at T-Mobile, said he is working to ensure that company grant agreements clearly specify what needs to be documented to secure payment, and expressed concern about missing important terms due to document review processes. Carl Gipson, Vice President of Local Government Affairs at Comcast, anticipated encountering staffing capacity issues during collaboration, particularly in quickly processing large volumes of permits or pole attachment requests.
Macres said the NTIA's years-long efforts to streamline federal environmental permitting processes for the BEAD program have yielded results. The agency has created online processing tools and classified the BEAD program under a "categorical exclusion" category, significantly reducing the review time required for some projects to hours or weeks, rather than the previous weeks or months.
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