FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,264
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unable to timely or reasonably access ducts, conduits, and rights-of-way controlled by utilities.34 We
emphasize that the determination we make regarding section 224(a)(1) rights-of-way owned or controlled
by a utility has no bearing on any public rights-of-way issues subject to section 253 of the Act.'35
46. Master Agreement not a Prerequisite to Completion of a Survey. In the Local
Competition Order, the Commission adopted a 45-day response rule, requiring a utility that denies access
to a prospective attacher to respond in writing with specificity, delineating the reasons for the denial.'36
That rule remains in effect and applies to wireless just as it does to wireline attachments. The current 45-
day response rule continues to apply to all requests for access under section 224, whether or not the
request is an application subject to the timeline we adopt today, and completion of an initial pole
attachment agreement or "master agreement" is not a prerequisite to starting the clock."37 We reject the
argument that surveys should not commence before an initial pole agreement or "master agreement" has
been executed.'" The Commission has never required completion of a master agreement to be a
precondition of a request for access, 39 and we reaffirm that utilities may not defer the 45-day response
requirement until a master agreement has been completed. " While an attacher may wish to investigate
possible routes on the ground rather than rely only on maps, and may need access to a pole owner's
specifications and application requirements in order to file a complete application, we are not persuaded
that a master agreement is needed for these purposes. Also, insofar as liability concerns arise regarding
damage to property or injury to persons-and it is not clear that they do during the survey stage-the
parties can resolve them for purposes of a 45-day engineering analysis without negotiating every aspect of
the parties' business relationship, as in a comprehensive master agreement.
47. We agree that make-ready performance does normally require an agreement to be in place
between the parties. We find, however, that the engineering analysis (or any other aspect of a survey) and
negotiation of rates, terms, and conditions can take place on separate tracks. Therefore, a utility may stop
the clock during the estimate stage of the timeline if the parties need additional time to conclude a master
agreement, but may not stop the clock during the survey stage. An attacher's right to proceed with a
survey of pole availability before completion of a master pole attachment agreement can be exercised
'4 By contrast, the record developed on the issue of timely access to poles evidences problems justifying the
adoption of a pole attachment timeline. See generally infra Part IIl.A.3.
135 Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment
by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting, WC Docket No. 11-59, Notice
of Inquiry, FCC 11-59 (rel. April 7, 2011).
136 See Local Competition Order, 11 FCC Rcd at 16101-02, paras. 1224-25; 47 C.F.R. 1.1403(b) (45-day
'"7 Master agreements are "private pole attachment agreements entered into between the parties in accordance with a
patchwork of federal, state, and local regulations and industry standards." Local Competition Order, 11 FCC Rcd at
16061, para. 1126. This agreement is usually generic and is separate from the agreement to attach to specific poles.
See Letter from Brian Regan, Government Relations Director, PCIA, to Marlene H. Dortch, Secretary, FCC, WC
Docket No. 07-245, GN Docket No. 09-51 at 5 (filed Mar. 3, 2011).
1'3 See Florida IOUs Reply at 13 (arguing against commencing a field survey before parties have reached a pole
license agreement); Letter from Sean B. Cunningham, Counsel, Alliance for Fair Pole Attachment Rules, to Marlene
H. Dortch, Secretary, FCC, WC Docket No. 07-245, at 2 (filed Jan. 27, 2011) (Alliance Jan. 27, 2011 Ex Parte
Letter) (arguing that a timeline should not commence unless the applicant has a master agreement that addresses
matters including, inter alia, insurance, indemnification, and safety procedures).
')39 See Local Competition Order, 11 FCC Rcd at 16074, para. 1160 (stating that a utility's obligation to permit
access does not depend upon the execution of a formal written attachment agreement).
140 Id. The Local Competition Order recognized that such agreements are the norm and encouraged their continued
use, subject to the requirements of section 224, and we continue to believe that is the case. Id.
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/436/: accessed July 27, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.