FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,275
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implementation procedures.218 When we consider these factors together, we reject the contention that the
timeline is inflexible.
74. In the timeline portion of this order, section III.A. 1, supra, we make clear that our new
timeline applies equally to wireline and wireless equipment in the communications space, and a modified
version applies to wireless attachments above the communications space. Here, we address two issues
that have arisen with regard to wireless attachments regardless of the applicability of a timeline: (1) the
section 1.1403(b) requirement that any denials of requests for section 224 access be specific in nature;
and (2) the section 224 requirement that attachers be allowed to access the space above what has
traditionally been referred to as "communications space" on a pole.
1. Specificity of Denials
75. We clarify that, regardless of whether a utility has a master agreement with a wireless
carrier, the specificity requirement of section 1.1403(b) applies to all denials of requests for access. The
Commission's rules require that, when a utility denies a request for access, it must state with specificity
its reasons for doing so. Section 1.1403(b) requires that denials of access be confirmed in writing within
45 days of the request.219 The utility also "shall be specific, shall include all relevant evidence and
information supporting its denial, and shall explain how such evidence and information relate to a denial
of access for reasons of lack of capacity, safety, reliability or engineering standards."o In the Further
Notice, the Commission proposed that, where a utility has no master agreement with a carrier for wireless
attachments requested, the utility may satisfy the requirement to respond with a written explanation of its
concerns with regard to capacity, safety, reliability, or engineering standards.22'
76. We agree with those commenters who assert that the proposed standard would be
susceptible to abuse.22 It is not sufficient for a utility to dismiss a request with a written description of its
blanket concerns about a type of attachment or technology, or a generalized citation to section 224.
Instead, we find that a utility must explain in writing its precise concerns--and how they relate to lack of
capacity, safety, reliability, or engineering purposes--in a way that is specific with regard to both the
particular attachment(s) and the particular pole(s) at issue. Furthermore, such concerns must be
reasonable in nature in order to be considered nondiscriminatory. Concerns that appear to be mere
pretexts rather than legitimate reasons for denying statutory rights to access will be given serious scrutiny
by the Commission, including in any complaint proceeding arising out of a denial of access. We believe
that this clarification regarding the specificity of denials will encourage communication and cooperation
between utilities and wireless attachers,223 and thereby promote the deployment of and competition for
telecommunications and broadband services.
218 Further Notice, 25 FCC Red at 11881, para. 33; 47 U.S.C. 224(b), (f); see, e.g., Coalition Comments at 15-17,
30-31, 88; Oncor Comments at 42; Verizon Reply at 26. The statute requires nondiscriminatory access, which
forecloses procedures and requirements that are not available to all requesting entities. See 47 U.S.C. 224(f)(1).
219 47 C.F.R. 1.403(b).
22o Id. (emphasis added).
221 Further Notice, 25 FCC Red at 11887-88, para. 52.
2 See, e.g., MetroPCS Comments at 12; NextG Comments at 11-14; DAS Forum Comments at 9-12.
223 See, e.g., NextG Comments at 11-14 (explaining how open communication and good-faith negotiation can help
overcome initial concerns about wireless antennas).
Federal Communications Commission
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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/m1/447/: accessed August 17, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.