Google Fiber and Verizon have come to loggerheads with the NCTA’s one-touch-make-ready (OTMR) plan to accelerate the make-ready review process for new pole attachments, kicking up more dust in what has been a contentious debate between incumbent providers and competitors expanding broadband services.
Under NCTA’s Accelerated and Safe Access to Poles (ASAP) proposal, which is supported by its cable constituents, the organization makes three main proposals: utilities would more quickly process applications for attachments; existing attachers would be required to perform make-ready more quickly; and new attachers would be required to use an existing attacher’s contractors to move an existing attacher’s facilities.
As a fledgling FTTH provider, which had waged battles with incumbent telco AT&T and Comcast in Nashville over OTMR, Google Fiber says that it is concerned that an existing attacher could deliberately hold up the process to keep competition at bay.
“[A]ny process (including the one set out in the current rules as well as NCTA’s alternative proposal) that relies on incumbents to perform make-ready work quickly and efficiently to benefit a new provider not only ignores the practical realities of coordinating work among multiple parties, but also could be undermined by competitive bias,” Google Fiber said in its FCC filing (PDF). “The results are delays and high, unpredictable costs. But NCTA claims that OTMR will be no improvement over the current process because electrical make-ready—that is, work that must be done by the electric utility, including pole replacements—is exempted from OTMR.”
Verizon, likewise, has also been critical of NTCA’s proposal, saying that it would actually exacerbate the timing issue that the OTMR proposals had hoped to solve.
“In short, NCTA’s 'Accelerated and Safe Access to Poles' proposal does not rectify the most significant problems identified with the existing process. Instead, the NCTA approach would continue today’s problematic make-ready approach, allowing each attacher to individually move its attachment,” Verizon said in an FCC filing (PDF). “Although NCTA asserts that existing attachers must do their make-ready concurrently, the reality is that make-ready is typically completed sequentially because a secondary attacher usually must wait until the attacher above has completed its work.”
However, NCTA refutes Google Fiber and Verizon’s claims that the ASAP plan is suspect and are nothing more than these two providers trying to push forward their own agendas.
“Verizon and Google’s opposition to the ASAP Proposal is entirely predictable given that the proposal departs in a number of ways from the extreme positions they have advocated,” NCTA said in FCC filing (PDF). “In particular, Google advocates a regime in which a new attacher would have near total control over the network facilities of existing attachers with no obligation to take serious responsibility for its actions. And Verizon simply appears resistant to any changes that would require it to process applications more quickly.”
Improving make-ready timelines
One of the key issues that OTMR has focused on is improving the timelines to perform make-ready work on existing poles so a new attacher can put up their facilities.
Google Fiber has sided with the FCC’s BDAC proposal that focuses on the communications industry.
What has made the make-ready timeline process challenging is the fact that it takes coordination between multiple parties—the new attacher, the pole owner, which could be the electric utility, incumbent telco and incumbent cable provider—all of which have facilities on existing poles.
NCTA’s ASAP Proposal calls for existing attachers to perform their own make-ready work. This would be 30 days after a pole owner gave approval for simple projects and 45 days after approval for complex projects.
“These time periods afford existing attachers an opportunity to maintain control over their networks and resolve issues in the field at the earliest stages of make-ready, thereby minimizing disputes, damages, disruption, and delay and speeding deployment,” NCTA said. “These timelines would run concurrently, not sequentially, in situations where there are multiple existing attachers, thereby addressing the most frequent complaint from new attachers. In addition, the proposal includes provisions that could result in even shorter time frames if an existing attacher does not intend to perform its own make-ready work.”
But Google Fiber and Verizon refute NCTA’s plan.
Google Fiber said that NCTA’s ASAP proposal could slow the attachment process.
“Combined with NCTA’s proposed 90-day advance look at a new competitor’s deployment—which would be completely unnecessary under OTMR because incumbent attachers would not themselves be 'engaging in large-scale make-ready activity on hundreds or thousands of poles'—this alternative proposal looks less like an improvement over today’s inefficient and uncertain process and more like a proposal designed to give existing attachers an expanded ability to delay new deployment by competitive entrants (not to mention more advance warning of their deployment plans),” Google said.
Google said that “NCTA’s shorter timeframe does nothing to ameliorate the other big problem with today’s procedures—high, unpredictable costs incurred by existing attachers and charged back to new providers, who have no visibility into the basis for those costs or ability to negotiate lower rates.”
However, NCTA maintains that Verizon and Google’s criticisms about shortened timetables and clarity related to pole owner obligations “miss the mark.”
“Pole owners retain critical control over access to poles for the make-ready process. Imposing reasonable time limits for pole owners to satisfy their obligations will help expedite the make-ready process by minimizing disputes between the pole owner and the attacher,” NCTA said. “More broadly, clarifying pole owner obligations will promote broadband infrastructure deployment in general by reducing delays and streamlining the pole attachment process.”
Addressing indemnification issues
Besides improving timelines, the NCTA proposal addresses indemnification for existing attachers’ facilities. What this means is that any new attacher should be held accountable to pay for any damage they or their hired contractor cause to existing attachers’ facilities, an element that has been part of all of the OTMR proposals.
While Google Fiber does not disagree that new attachers should be liable for any damage caused during the make-ready process, the company disagrees that extending the liability to third-party damage that come out of service outages could be damning to new entrants.
“The Commission can and should mandate that new attachers using OTMR be liable for such damage,” Google Fiber said. “But extending that liability to third party claims for consequential, incidental, special, or even punitive damages—particularly such damages that arise out of service outages—would create a risk profile so immense that new deployments, which are economically difficult under the best of circumstances, would be financially impossible.”
Google Fiber added that NCTA is not asking the FCC to require new attachers to negotiate a properly bounded indemnity obligation with existing attachers but rather “adopt a one-size-fits-all indemnification requirement that is without precedent.”
Verizon agreed and said that the FCC “should not impose broad third-party indemnification requirements on OTMR.”
NCTA disagreed and said that it is suspicious that Google Fiber would not want to take responsibility and that it has struck more stringent agreements for pole attachments and right-of-way arrangements in other cities.
“Google’s objections to taking any responsibility for the work of its chosen contractors beyond reimbursement for physical damage to the network is suspect,” NCTA said. “Indeed, Google Fiber has agreed to far broader indemnification provisions protecting pole owners and municipalities in its pole and right of way agreements with Kansas City, Provo and Huntsville. And when its own interests are at stake, Google requires developers creating apps for Android devices to agree to broad indemnification protecting Google 'to the maximum extent permitted by law.'”
NCTA is not the only group to raise the indemnification issue.
AT&T, in an earlier FCC filing, said that “existing attachers and pole owners should be indemnified for damages/outages caused by new attachers or their contractor.”