PCCA Journal 4th Quarter 2023

The Official Publication of the Power & Communication Contractors Association PCCA Supports House Committee Markup of PIPES Act of 2023 NLRB Issues Expanded Joint Employer Final Rule Support Grows for Dignity Act 2023 Year-End Product Showcase 4th Quarter 2023 FCC’s Carr Opposes Biden Internet Plan PCCA Past Chair John Fluharty discusses broadband policy with FCC Commissioner Brendan Carr at AEM’s Celebration of Construction on the National Mall in May

WHEN When it comes to laying fiber cable, a clean trench means speed, efficiency and a better bottom line. The Guzzler MT is the ideal productivity solution. This highly efficient Microtrenching Vacuum Unit increases the speed of fiber optic installations by quickly cleaning trenches for the deployment of FTTH, CCTV, smart grid and electric networks. BOTTOM LINE: With faster operating speeds and cleaner trenches, installers can lay more feet per day. Visit GUZZLER.COM Clean. Fast. Connected.

Trust Proudly serving the Electric Utility Industry with the best tools and services since 1952 Learn more about Tallman Equipment


4th Quarter 2023 Official Publication of the Power & Communication Contractors Association Publication Staff PO Box 638 Churchton, Maryland 20733 (800) 542-PCCA • www.pccaweb.org ©2023 Power & Communication Contractors Association Publisher Timothy Wagner Editor Michael Ancell Advertising Sales Stacy Bowdring Photography Jorge de Casanova Information Technology Greg Smela Accounting James Wagner Layout & Design Joseph Wagner NLRB Issues Expanded Joint Employer Final Rule 12 By Greg Guidry The National Labor Relations Board issued a final rule for joint-employer status that will make it far more likely for one business to be deemed a joint employer of another business’s employees under the National Labor Relations Act. Because power and broadband contractors have relationships with several subcontractors and vendors on most projects, they need to understand the potential impact of this new rule. Carr Opposes White House Internet Plan 15 FCC Commissioner Brendan Carr: “So last month, President Biden gave the FCC its marching orders. The President called on the FCC to implement a one-page section of the 2021 Infrastructure Investment and Jobs Act by adopting new rules of breathtaking scope, all in the name of ‘digital equity.’ For the first time ever, those rules would give the federal government a roving mandate to micromanage nearly every aspect of how the internet functions—from how ISPs allocate capital and where they build, to the services that consumers can purchase; from the profits that ISPs can realize and how they market and advertise services, to the discounts and promotions that consumers can receive. Talk about central planning.” Inside Washington | By Jaime Steve & Zack Perconti 7 Broadband News 19 Power News 23 News Briefs 29 PCCA Year-End Product Showcase 33 Industry Calendar 45 Advertiser Index 45 New PCCA Members 46 Officer Directors Board of Directors Garrett Akin Brooks Construction Co., LLC Nick Anderson Anderson Underground, Inc. John Audi Mears Group, Inc. Bob Breeden ElectricCom, Inc. Bonnie Burnham Service Electric Company John Capodice Sterling Site Access Solutions Josh DeBruine Michels Corporation Justin Druffel Caterpillar, Inc. John Fluharty (Advisory) Mears Group, Inc. Tom Fredericks American Polywater Corporation Robin Gilbertson J&R Underground, LLC Jerrod Henschel Equix, Inc. Tommy Muse, Jr. Aubrey Silvey Enterprises, Inc. Steve Sellenriek (Advisory) UtiliSource Sam Stephens Tjader & Highstrom Jason Tyler Brooks Construction Co., LLC Billy Vincent ElectriCom, Inc. Michael Whitebread J.J. Kane Auctioneers Chris Wozniak Intercon Construction, Inc. Chairman Ed Campbell Quanta Services, Inc.. Chairman-Elect Matthew Gabrielse Gabe’s Construction Co., Inc 1st Vice Chairman Rob Pribyl MP Nexlevel, LLC. 2nd Vice Chairman Craig Amerine Amerine Utilities Construction, Inc Treasurer Heath Sellenriek Sellenriek Construction Secretary Chase Lapcinski Push, Inc. FCC Commissioner Carr talks with PCCA members in Washington, D.C., in May.

NO ONE EVER SAID SAFETY SECOND. At 40 tons and over 30 feet long, safety comes first. By combining cameras and radar, the Advanced Vision System gives operators eyes in the back of their head. To protect your crew, and other investments, like never before. DEERE.COM/SMARTERTOOLS NEVER IDLE 904 P-TIER ADVANCED VISION SYSTEM

PCCA Journal|4th Quarter 2023 7 The Dignity Act (H.R. 3599), a bipartisan bill aimed at closing America’s skilled workforce gap while seriously tackling border and immigration issues, has recently grown its support to 20 members of the House of Representatives. At press time, the bill has ten Republican sponsors and ten Democratic sponsors representing twelve states and Puerto Rico. PCCA endorses the Dignity Act as a serious, bipartisan effort to tackle the difficult questions of immigration reform, workforce development, and border security, and our team has been working with the office of Rep. Maria Salazar (RFla.) to build support for the bill. While the Dignity Act is not a perfect piece of legislation, PCCA hopes that it can form the basis of bipartisan compromise. At its core, the legislation seeks to overhaul and streamline America’s complicated and overburdened immigration system, reducing the incentive to cross the border illegally. It would also provide substantial investment toward securing the southern border and create a path to legal status and work for otherwise law-abiding undocumented individuals currently in the United States. Provisions relating to establishing a path to legal residency—not citizenship—do not take effect until the Secretary of Homeland Security certifies that the border is secure, an important recognition that meaningful reform is impossible while border security continues to be an issue. The bill’s Dignity Program would grant undocumented people in the United States legal status, along with work and travel authority, and grant them a permanently renewable legal status for as long as they meet the criteria. Participation in the program would require Dignity beneficiaries to pay $5,000 over the course of seven years (the duration of the program), as well as pass a criminal background check, pay any outstanding taxes, and begin or continue Continued on page 8 Inside Washington Zack Perconti PCCA Government Affairs Representative zperconti@pccaweb.org (703) 677-6049 Jaime Steve PCCA Government Affairs Representative jsteve@pccaweb.org (202) 841-5493 Support Grows for Dignity Act Rep. Maria Salazar (R-Fla.) speaks during a press conference on immigration outside the U.S. Capitol in May.

PCCA Journal|4th Quarter 2023 8 Inside Washington Continued from page 7 paying taxes. These required restitution payments would fund both the continued existence of the program (adding no cost to the U.S. taxpayer) as well as technical/vocational training for legal American citizens and residents. For more information on the Dignity Act, visit salazar. house.gov/dignity-act. In addition to lead sponsors Reps. Salazar and Veronica Escobar (D-Tex.), current co-sponsors of the bill are: • Rep. Colin Allred (D-Tex.) • Rep. Jake Auchincloss (D-Mass.) • Rep. Matt Cartwright (D-Pa.) • Rep. Lori Chavez-DeRemer (R-Ore.) • Rep. Mario Diaz-Balart (R-Fla.) • Rep. John Duarte (R-Calif.) • Rep. Jennifer Gonzalez-Colon (R-P.R.) • Rep. Susie Lee (D-Nev.) • Rep. Mike Levin (R-Calif.) • Rep. Michael Lawler (R-N.Y.) • Rep. Kathy Manning (D-N.C.) • Rep. Dan Newhouse (R-Wash.) • Rep. Hillary Scholten (D-Mich.) • Rep. Abigail Spanberger (D-Va.) • Rep. Marilyn Strickland (D-Wash.) • Rep. Daren Soto (D-Fla.) • Rep. David Valadao (R-Calif.) • Rep. Susan Wild (D-Pa.) If your representative is not on this list, we urge you to contact him or her and ask them to become a co-sponsor. PCCA has previously sent out a grassroots Muster alert on the legislation, and there will be more to come. We urge you to participate in these campaigns! When re-introducing the bill earlier this year, Salazar said, “Our broken immigration system is frustrating Americans, causing people to suffer, and fracturing our country—economically, morally, socially, and politically. A solution is long overdue. I am proud to introduce the new and improved, bipartisan Dignity Act. This bill gives dignity to the border agents who need support, the job creators who need employees, the American people who need secure borders, and those who currently live in the shadows.” A summary of Dignity Act provisions provided by Salazar’s office is below. While PCCA has not endorsed all provisions of the legislation, we recognize that it is the most serious starting proposal for a meaningful bipartisan compromise currently pending before Congress, and therefore we support the package as a whole. The Dignity Act as currently written would: • Provide $25 billion to fully secure the border. • Mandate 100 percent nationwide E-verify to ensure all American businesses are hiring legal workers. • Achieve operational control and advantage of the southern border by employing a comprehensive Southern Border Strategy. • Construct enhanced physical barriers and deploy the most up-to-date technology at the border. • Hire thousands of new Border Patrol agents, CBP officers, and border intelligence units. • Implement new policies to stop criminals crossing the border illegally, including new authorities to track cartel spotters, and raise penalties on human traffickers and child sex traffickers. • Expedite processing and ends catch-and-release policies. • Establish the Dignity Program, a practical solution for undocumented immigrants who have been in the U.S. for more than five years. • Recipients will be offered a chance to work, pay restitution, get right with the law, and earn legal status. • Applicants must pass a criminal background check and pay outstanding taxes or debts. • Pay $5,000 in restitution during the seven years of the program, check in with DHS every two years, and remain in good public standing. • Create a new American Worker Fund, using restitution payments from the Dignity and Redemption Programs. This fund would provide workforce training, upskilling, and education for unemployed American workers. In addition to PCCA, the growing list of groups endorsing the Dignity Act includes the U.S. Chamber of Commerce, the Essential Worker Immigration Coalition, Catholic Charities USA, the U.S and Hispanic Business Council, Florida Farm Bureau Federation, National Retail Federation, National Association of Landscape Professionals, and the National Association of Evangelicals. Bill Introduced to Increase Access to Broadband on Federal Land As the federal government prepares to roll out the $42.5 billion in Broadband Equity, Access, and Deployment (BEAD) Program infrastructure funding to states in the coming months, conversations in Congress continue about a path forward on further meaningful permitting reform beyond the limited achievements in the Fiscal Responsibility Act debt ceiling agreement. In late September, U.S. Senators John Bar-

PCCA Journal|4th Quarter 2023 9 rasso (R-Wyo.) and Kristen Sinema (I-Ariz.) introduced legislation to increase access to high-speed broadband on federal land. The Close the Gap Act (S. 2855) aims to streamline the permitting process for broadband projects on federal land, particularly in rural areas across the country. Like many other projects, broadband projects can face significant permitting challenges and delays when crossing federal land, with an average approval time of up to 48 months in some cases. These protracted delays pose threats to broadband projects, drive up costs, and restrict the availability of high-speed internet and essential telehealth services in communities that find themselves increasingly isolated in the modern digital era. “Access to fast and reliable internet is critical to keeping rural communities, small businesses, and emergency services running smoothly. In Wyoming, half the land is owned by the federal government. There is a significant gap in internet service and in some cases no service at all,” Barrasso said when introducing the bill. According to the Senators’ offices, the bill would: • Require federal land management agencies to issue new regulations that would streamline the process for broadband applications on federal land. • Direct the establishment of categorical exclusions for improvements to existing infrastructure that would improve public safety. • Provide exemptions from the National Environmental Policy Act for broadband infrastructure on federal land that has previously received an approved permit to install broadband infrastructure. • Establish online portals for submission of Standard Form299 applications. • Establish a working group between each federal land management agency to periodically meet to coordinate and expedite the review of applications. Reform will be vital to a timely rollout of BEAD funding and the overall success of the federal government’s aim to extend access to high-speed broadband to every American by the end of the decade. That will be hard enough to achieve even with permitting reform and will be impossible without it. PCCA will monitor and engage with this and other proposals to streamline the permitting process moving forward, and we are optimistic that some bipartisan agreement can be © 2023 The Charles Machine Works, Inc. Learn more from your Ditch Witch® dealer. The Marksman Plus HDD Guidance System provides superior performance in high-interference environments with the industry’s widest range of frequencies in a single beacon. Continued on page 10

PCCA Journal|4th Quarter 2023 10 reached with the House and the Biden administration during this Congress. Encouraging States to Conduct GIS Mapping of Underground Infrastructure As the House of Representatives continues work on the most recent reauthorization of the Pipeline and Hazardous Materials Safety Administration (PHMSA) law, PCCA has worked to ensure that it includes robust damage prevention language that encourages states to adopt best practices and recommendations outlined in the Infrastructure Protection Coalition study and reports. PCCA has focused its efforts on adding a provision urging states to consider GIS (Geospatial Information System) mapping of underground infrastructure. The goal is to drastically improve damage prevention through more precise, easily accessible location information for both legacy (previously constructed) and newly constructed underground infrastructure systems. PCCA has consulted with the Common Ground Alliance and other industry groups to hammer out a unified industry position on GIS mapping. The industry proposal urges (rather than mandates) states to take the lead in developing GIS mapping programs. At press time, the House was significantly ahead of the Senate in its progress on bipartisan PHMSA reauthorization. The Senate has yet to announce significant progress on its version of the legislation and is likely letting the House take the lead before moving forward. While the agency’s authority technically lapsed at the end of fiscal year 2023, there is hope that the House will be able to swiftly move forward with a committee vote and attach their legislation to a must-pass government funding bill. New OSHA Worker Walkaround Rule Threatens Integrity of Process, Raises Liability Concerns On August 30, OSHA issued a notice of proposed rulemaking on its employee walkaround representative process. Under OSHA’s proposed rule, a single employee request would be enough to allow third parties deemed “reasonably necessary Inside Washington Continued from page 9 YOUR SOURCE FOR OPTICAL TROUBLESHOOTING Contact FS3, INC. at 320-274-7223 for additional kit details. The Flashpistol® PX-Q4XX series of tracer sources are designed to inject modulated tracer light into a fiber for use with all Photonix leak detection probes or fiber identifiers with 2kHz detection capability. The tracer sources are available as individual units or in kit form when paired with leak detection probes. The LightHawk™ light detection probe is state of the art in precision fiber optic fault location. It is designed to find an infrared glow from splices, connectors, bends, damage, or open ports. It can safely detect cable faults over long distances (>200 miles), in bright room light, and in many blue, green, and black coated fibers.

PCCA Journal|4th Quarter 2023 11 to the conduct of an effective and thorough physical inspection of the workplace” to accompany OSHA inspectors during worksite visits. Third-party representatives could include union organizers, community activists, employees of competitors, attorneys engaged in litigation against a company, or anyone else that OSHA inspectors deem appropriate to accompany them on an inspection. The rule provides no limit on the number of third parties that OSHA can bring with them, nor does it provide significant guidance on how OSHA will process and approve requests. Under the current iteration of the rule, the standard for bringing along a non-employee representative is significantly higher (good cause must be demonstrated for an individual, such as an industrial hygienist or safety engineer) to accompany the Compliance Health and Safety Officer (CHSO). The proposed rule largely does away with that requirement by explicitly clarifying that employee representative(s) may be a third party and by leaving “good cause” entirely to the judgment on the CHSO while providing no guidance or rubric for evaluating those requests. While the Biden administration has introduced this proposal as a part of the “whole of government” approach to supporting unions, there are many reasons for all segments of the industry to be concerned. Several organizations, including PCCA, have pointed out the very real liability and privacy concerns by having any number of potentially untrained individuals walking around busy jobsites. And by allowing access to a third party based on only a single employee request, it empowers disgruntled employees to retaliate against the company in any number of ways, including potentially requesting access to those who would launch a media campaign against their employer, for those seeking proprietary information, or those seeking to take legal action against the company. PCCA has already signed onto coalition letters pushing back against the proposed rule and has filed comments. A last thought: even when Congress functions normally, work is often slow and progress uncertain. Despite these challenges, PCCA’s government affairs team is committed to being on top of everything that could affect your business and is focused on making our collective voices heard on the issues that matter. You can always count on that. Ring Power Utility Equipment provides all the resources you need to get the demanding jobs done. Ring Power Utility Equipment specializes in everything from bucket trucks and digger derricks to our vocational line of equipment, including grapple loaders, hydroexcavation trucks and contractor trucks. Ring Power Crane can handle all your lifting and rigging needs with lattice boom, crawler, truck mounted, rough terrain and industrial cranes YOUR ONE-STOP SOURCE FOR JOBSITE UTILITY EQUIPMENT, VOCATIONAL TRUCKS AND CRANES 844.766.RENT | info@ringpower.com While the Biden administration has introduced this proposal as a part of the “whole of government” approach to supporting unions, there are many reasons for all segments of the industry to be concerned.

PCCA Journal|4th Quarter 2023 12 On October 26, 2023, the National Labor Relations Board (NLRB) issued a final rule for joint-employer status that will make it far more likely for one business to be deemed a joint employer of another business’s employees under the National Labor Relations Act (NLRA). The new rule eliminates the clear standards and predictable consequences the current rule provides, depriving employers of the ability to reasonably forecast the risks and costs of their contracts with providers, vendors, subcontractors, and franchisees. Because utility contractors have relationships with several subcontractors and vendors on most projects, they need to understand the potential impact of this new rule. Key Points • The NLRB finalized a new rule that provides an independent business entity may be deemed joint employer of another company’s employees merely because it has [ITAL] authority or control [ITAL] over any essential term or condition of their employment, regardless of whether it ever actually exercised such control. • The new rule significantly expands the current rule’s definition of the “essential terms and conditions of employment” by including additional terms that are inherently vague. • The new rule takes effect on December 26, 2023, and rescinds and replaces the NLRB’s 2020 joint-employer rule. New Joint-Employer Rule Under the NLRB’s current joint-employer rule adopted in 2020, an entity may be considered a joint employer if it exercises actual and direct control over a specified and clearly defined list of essential terms and conditions of employment. The new rule, titled “Standard for Determining JointEmployer Status under the National Labor Relations Act,” eliminates the requirement that control be actually exercised, providing that an entity may be a joint employer if it “possesses the authority to control (whether directly, indirectly, or both) or to exercise the power to control...one or more of the employee’s essential terms and conditions of employment.” In the final rule notice, the NLRB explained that an entity has such direct or indirect control “regardless of whether the [entity] exercises such control.” The new rule defines the “essential terms and conditions of employment” as: “(1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.” Importantly, these seven terms represent what the NLRB considers the “core subjects of collective bargaining” contemplated by the NLRA. Further, the NLRB’s final rule expands on its proposed rule released in September 2022 by requiring that a joint employer of a group of employees “must bargain collectively with the representative of those employees.” While a joint employer will be required to bargain only over those terms and conditions that it “possesses the authority to control or exercises the power to control,” it must bargain about all terms and conditions over which it has such authority or exercises power to control, even those the rule does not define as “essential.” Human Resources Greg Guidry Ogletree Deakins Nash Smoak & Stewart greg.guidry@ogletree.com (337) 769-6583 NLRB Issues Expanded Joint Employer Final Rule By Greg Guidry

PCCA Journal|4th Quarter 2023 13 Despite comments to the proposed rule from employers in particular sectors and industries that anticipate substantially negative impacts, such as the construction industry, franchisors, staffing agencies, and healthcare, the NLRB declined to carve out any exceptions or otherwise make clear how and to what extent the rule applies to particular industries or common business arrangements. Instead, the NLRB has left businesses to guess and rely upon the NLRB’s assertion that it will be “mindful that applying the final rule will require sensitivity to industry-specific norms and practices” and has noted it “will take any relevant industry-specific context into consideration when considering whether an entity is a joint employer.” Purported Common Law Principles The new rule largely mirrors the short-lived and much-criticized rule the Board adopted in its 2015 decision in Browning-Ferris Industries of California, Inc., which had rejected the “direct and immediate” control framework. The new rule makes clear that joint-employer status exists only where an entity has authority or control over essential terms or conditions of employment, and the rule sets forth a limited list of what specifically is considered essential terms and conditions. The Board majority stated that the rule “more faithfully grounds the joint-employer standard in established commonlaw agency principles.” However, the new rule actually expands on BFI’s broad approach, deeming joint-employer status can exist based on any level of authority or control the putative joint employer reserves or has over one essential employment term. BFI, at least, allowed for consideration of the extent to which that potential control existed and whether it was material to bargaining. Dissenting to the new rule, Board Member Marvin Kaplan called the new rule “an unprecedented and unwarranted expansion of the Board’s joint-employer doctrine” and argued that it could “frustrate national labor policy” by placing multiple employers at the bargaining table, particularly some who may never have exercised control over the employees. Kaplan built his dissent on the framework under which federal agency regulations can be challenged, laying out a detailed and well-articulated argument for parties that will inevitably challenge the new rule in the federal courts. Also, within hours of the NLRB’s announcement of the final rule, Senators Joe Manchin (D-W.Va.) and Bill Cassidy (R-La.) announced their introduction of a Congressional Review Act resolution to rescind the rule. Stay tuned. Next Steps The new rule takes effect on December 26, 2023, and will apply to cases filed after that date. All utility contractors may now want to consider reviewing their current and pending contracts with third parties to evaluate whether those agreements could be interpreted as reserving the right to potentially control any essential term or condition of another entity’s employees. And given that the actual exercise of direct control over another entity’s employees creates a meaningful risk of being deemed a joint employer under most federal labor and employment laws, an employer that allows the employees of third parties to perform work on its premises also may want to consider reviewing the actual practices of their supervisors and managers and (to the extent possible under any particular business situation) training them to avoid actions that might be used to argue it has direct or indirect control over another entity’s employees. Lubricants for Every Project • Blowing/Jetting Lubricants • FTTX Cable Lubricant • Pourable Lubricants for Easier Application • Lubricants Designed for Specialty Cables www.polywater.com 800-328-9384 651-430-2270

PCCA Journal|4th Quarter 2023 14 CONTACT US TO GET STARTED: MYMILLENNIUM.US | 866.287.7830 ON TIME. ON BUDGET. ON YOUR TERMS. Partner with Millennium. There isn’t a one-size-fits-all package for broadband network projects, but there is an all-in-one solution. That’s why we offer data driven planning, equipment rental, financing options, and all of the materials you require to get the job done right.

PCCA Journal|4th Quarter 2023 15 Carr Opposes White House Internet Plan On November 6, FCC Commissioner Brendan Carr issued the following statement: Democrats have been in charge of the FCC and administrative agencies in DC for approaching 12 out of the last 16 years. They have had the opportunity, over that stretch of time, to put in place nearly any federal telecom policy of their choosing. In fact, the federal government has allocated hundreds of billions of taxpayer dollars for the purpose of ending the digital divide while Democrats have run the administrative state. After all of that time and after all of that spending, the Biden administration has concluded that the Democrats’ policies are not working. I agree with President Biden on this point. The administration’s broadband policies are failing. The costs of building internet infrastructure in this country have skyrocketed thanks to the Biden administration’s inflationary policies. The administration has no plan for filling a now empty spectrum pipeline—one that is vital to America’s economy and geopolitical leadership. Meanwhile, the FCC is just sitting on spectrum that could connect millions of Americans to new 5G services. The administration has needlessly blocked and delayed new broadband infrastructure builds. Fiber and cell site components are laying fallow in warehouses and laydown yards across the country due to the government’s failure to remove regulatory red tape. Permitting reform has gone nowhere. And the Biden administration is preparing to waste additional taxpayer dollars through its multi-billion dollar “internet for all” initiative by pursuing extraneous political goals at the expense of connecting Americans. But the Biden administration is taking away all the wrong lessons from its failed broadband policies. Rather than righting the ship, the Biden administration is going hard left. It is Continued on page 16 FCC Commissioner Says White House’s Unlawful Power Grab Chooses Central Planning over Free Market Capitalism FCC Commissioner Brendan Carr

PCCA Journal|4th Quarter 2023 16 now blaming the private sector and free market capitalism itself for the administration’s own policy shortfalls. The problem, the administration has apparently concluded, is that the FCC has never gone full command and control when it comes to regulating the internet. So last month, President Biden gave the FCC its marching orders. The President called on the FCC to implement a onepage section of the 2021 Infrastructure Investment and Jobs Act (Infrastructure Act) by adopting new rules of breathtaking scope, all in the name of “digital equity.” For the first time ever, those rules would give the federal government a roving mandate to micromanage nearly every aspect of how the internet functions—from how ISPs allocate capital and where they build, to the services that consumers can purchase; from the profits that ISPs can realize and how they market and advertise services, to the discounts and promotions that consumers can receive. Talk about central planning. Needless to say, Congress never contemplated the sweeping regulatory regime that President Biden asked the FCC to adopt—let alone authorized the agency to implement it. Nonetheless, the Commission will vote next week, on November 15, to put President Biden’s plan in place. A draft of the FCC order implementing President Biden’s plan is available here (docs.fcc.gov/public/attachments/DOC-397997A1. pdf). I oppose the plan for several reasons. President Biden’s plan hands the Administrative State effective control of all Internet services and infrastructure in the country. Never before, in the roughly 40-year history of the public internet, has the FCC (or any federal agency for that matter) claimed this degree of control over it. Indeed, President Biden’s plan calls for the FCC to apply a far-reaching set of government controls that the agency has not applied to any technology in the modern era, including Title II common carriers. The closest analog would be the heavy-handed rules the FCC applied to the Ma Bell telephone monopoly during the height of the New Deal era—a copper wire period of time when it was hard to distinguish between government regulator and telephone provider. But do not take my word for it. The text of the order expressly provides that the FCC would be empowered, for the first time, to regulate each and every ISP’s: • “network infrastructure deployment, network reliability, network upgrades, network maintenance, customer-premises equipment, and installation;” • “speeds, capacities, latency, data caps, throttling, pricing, promotional rates, imposition of late fees, opportunity for equipment rental, installation time, contract renewal terms, service termination terms, and use of customer credit and account history;” • “mandatory arbitration clauses, pricing, deposits, discounts, customer service, language options, credit checks, marketing or advertising, contract renewal, upgrades, account termination, transfers to another covered entity, and service suspension.” As exhausting as it is to read that list, the FCC itself says it is not an exhaustive list. The Biden administration’s plan empowers the FCC to regulate every aspect of the internet sector for the first time ever. The plan is motivated by an ideology of government control that is not compatible with the fundamental precepts of free market capitalism. But it gets worse. The FCC reserves the right under this plan to regulate both “actions and omissions, whether recurring or a single instance.” In other words, if you take any action, you may be liable, and if you do nothing, you may be liable. There is no path to comFCC Commissioner Carr Continued from page 15

PCCA Journal|4th Quarter 2023 17 plying with this standardless regime. It reads like a planning document drawn up in the faculty lounge of a university’s Soviet Studies Department. President Biden’s plan sweeps entire industries within the FCC’s jurisdiction for the first time in the agency’s 90-year history. It would be one thing if the FCC cabined its intrusive new regime to ISPs or even businesses within the communications sector. It does not. The draft FCC order says that “we are not explicitly tasked with regulating entities outside the communications industry” (a rare moment of regulatory humility), but it then goes on to say that the FCC will do so in this case nonetheless (the moment passed). Landlords are now covered, construction crews are now covered, marketing agencies are now covered, banks are now covered, the government itself is now covered— all newly regulated by the FCC and liable for any act or omission that the agency determines has an impermissible impact on a consumer’s access to broadband. Congress never authorized the FCC to regulate these industries or entities. So, to all the businesses and individuals that will be subject to FCC regulation for the first time ever, welcome, I hope you have good lawyers. President Biden’s plan allows the FCC to impose unfunded build mandates on ISPs and unlimited monetary fines on every covered entity. Section 60506, the one-page portion of the Infrastructure Law that President Biden cites as authority for the FCC’s new regime, does not authorize the Commission to create or enforce new punitive liability rules or compel builds. Instead, it directs the FCC to “facilitate equal access to broadband internet access service.” Nonetheless, the FCC’s draft order determines that the agency will apply the full suite of the Communications Act’s enforcement powers to any act or omission that violates its new Section 60506 regime, although it will do so with one minor deviation from the Communications Act norm: it imposes no ceiling on the level of potential fines. This means that ISPs could very well be compelled to build out internet infrastructure without any compensation. And every decision from the C-Suite to the call center will be subject to FCC second-guessing. President Biden’s plan includes price controls. Last month, at the eleventh hour, the FCC slightly softened its proposal to Take a look at our NEW DIGITAL TOOLS and discover what MicroTechnology can do for your next project! www.duraline.com (800) 847-7661 Visit: www.duraline.com/tech-center/digital-tools or scan the QR code: Continued on page 18

PCCA Journal|4th Quarter 2023 181.800.238.7514 Dedicated to supporting the success of contractors in telecom. 20,000+ Stocked Products 800+ Industry Suppliers 99.9% Accurate Delivery TRUSTED INDUSTRY SUPPLIERS ptsupply.com FCC Commissioner Carr Continued from page 17 use its Title II proceeding to regulate broadband rates. Now we know why. The Section 60506 order that the FCC will vote on next week expressly states that the FCC can use it to regulate broadband pricing and even an ISP’s profitability. Title II is no longer necessary to achieve that end. But the Section 60506 rules do more than that. The FCC arrogates to itself the power to review and determine the lawfulness of promotional pricing and discounts. It even puts the use of credit checks squarely in the cross hairs. Of course, Congress did not give the FCC the power to do any of this—the agency just creates it out of whole cloth. President Biden’s plan adopts an expansive and disfavored theory of liability that Congress neither directed nor authorized the FCC to adopt. Section 60506 of the Infrastructure Act speaks in brief and straightforward terms: it states that it is the policy of the United States that, insofar as technically and economically feasible, subscribers should benefit from equal access to broadband. Section 60506 then directs the FCC to adopt rules that facilitate equal access to broadband (again, to the extent technically and economically feasible) and to prevent and eliminate “digital discrimination” based on income level, race, ethnicity, color, religion, or national origin. After nearly two years and several rounds of comments, the FCC’s draft order concludes that “there is little or no evidence” in the agency’s record to even indicate that there has been any intentional discrimination in the broadband market within the meaning of the statute. But instead of proceeding with forward-looking rules on that basis, the FCC—at President Biden’s direction—reads an expansive and disfavored theory of liability into the law that exists nowhere in the statutory text. Even in the absence of any evidence of intentional discrimination, the Biden plan states the FCC can impose potentially unbounded liability if the agency finds that some act or even failure to act happened to result in a disparate impact based on the FCC’s own judgment. Reading this theory of liability into the law conflicts with the Supreme Court’s civil rights precedent. The FCC should not adopt it. In the end, the FCC could have adopted rules that lawfully and faithfully implemented Congress’s decisions in the Infrastructure Act. The FCC could have taken concrete steps that would have extended high-speed Internet services to more Americans. In fact, the FCC cites a few such actions in its draft order that were raised in the record—including eliminating government-imposed barriers and regulatory red tape that have been slowing down broadband builds. But instead of going that route, the FCC opts for this ideological approach instead.

PCCA Journal|4th Quarter 2023 19 On November 1, the Federal Communications Commission (FCC) announced that it will launch an inquiry to kick off the agency’s evaluation of the state of broadband across the country, as required by section 706 of the Telecommunications Act of 1996. As part of this inquiry, the commission will focus on the universal service goals of section 706: universal deployment, affordability, adoption, availability, and equitable access to broadband throughout the United States. “During the pandemic and even before it, the needs of internet users surpassed the FCC’s 25/3 standard for broadband. This standard is not only outdated, it masks the extent to which low-income neighborhoods and rural communities are being left offline and left behind,” FCC Chairwoman Jessica Rosenworcel said. “In order to get big things done, it is essential to set big goals. That is why we are kicking off this inquiry to update our national broadband standard and also set a long-term goal for gigabit speeds.” In light of the increasing uses and demands for broadband and the congressional directives embodied in the Bipartisan Infrastructure Law, which includes the largest ever federal investment in broadband deployment, this Notice of Inquiry (NOI) will take a fresh look at the FCC’s standards for evaluating broadband deployment and availability, the quality of the commission’s available data, and the framework that the agency uses to make a finding under section 706. In addition to focusing on a universal service standard, the NOI proposes to increase the national fixed broadband speed benchmark to 100 megabits per second for download and 20 megabits per second for upload and discusses a range of evidence supporting this standard. The FCC previously set the benchmark at 25/3 Mbps in 2015 and has not updated it since. The NOI also seeks comment on setting a separate BROADBAND NEWS Benefits of Hydroseeding for Construction Speed: Makes adhering to tight scheduleds and deadlines easier Quality: Produces lusher, greener lawns and landscapes than dry seeding or sodding Versatility: Works well for many different types of construction-related applications Labor Savings: Complete more work in less time with fewer human resources Learn more at www.finncorp.com Continued on page 20 FCC Launches Inquiry to Increase Minimum Broadband Speed Benchmark, Set Gigabit Future Goal

PCCA Journal|4th Quarter 2023 20 Broadband News Continued from page 19 Senators Introduce Bill to Lower Broadband Costs, Boost Connectivity for Rural Areas In November, Senators Markwayne Mullin (R-Okla.), Mark Kelly (D-Ariz.), and Mike Crapo (R-Idaho) introduced the Lowering Broadband Costs for Consumers Act of 2023 to direct the Federal Communications Commission (FCC) to require proper contributions to the Universal Service Fund (USF) from edge providers and broadband providers. Requiring edge providers to cover associated costs for rural fiber networks will reduce the financial burden on consumers and rural providers while strengthening broadband connectivity throughout rural America. In Oklahoma, less than half of all rural residents have access to broadband internet, a necessity most people across the country have enjoyed at a low cost for years. More than 30 percent of individuals living on Tribal land across the U.S. do not have access to high-speed internet. “Fair contributions to the USF from edge providers are long overdue,” Mullin said. “Video streaming services account for 75 percent of all traffic on rural broadband networks. However, unrecovered costs from streaming companies are often shifted and borne by small rural broadband providers. Available, affordable internet will close the digital divide and increase telehealth, educational, and employment opportunities for those who previously went without. Rural Oklahomans deserve the same connectivity as those living in urban areas.” national goal of 1 Gbps/500 Mbps for the future. Lastly, this inquiry will be the first to use the new Broadband Data Collection (BDC) data. In March 2020, Congress passed the Broadband DATA Act, which required the FCC to collect biannual data relating to the availability and quality of service of fixed and mobile broadband internet access service for the commission to create broadband coverage maps. Pursuant to the Act, the FCC now collects more precise, location-by-location broadband availability data through the BDC. Through this inquiry, the FCC will examine how these improvements to our data collection may impact the standards and inform the agency’s conclusions about broadband availability. FCC Authorizes 368 Companies to Receive More Than $18 Billion to Expand Rural Broadband The Federal Communications Commission in October issued a Public Notice that authorizes approximately $18.28 billion in Enhanced Alternative Connect America Cost Model (Enhanced A-CAM) support for carriers that have accepted the offer of Enhanced A-CAM support in the states identified in today’s Authorization Report for a 15-year period beginning January 1, 2024. Collectively, these companies are committing to deploy broadband service of at least 100/20 Mbps service to more than 700,000 locations and to maintain or improve existing 100/20 Mbps service to approximately 2 million locations in 44 states across the United States. In July 2023, the FCC adopted an order to establish the Enhanced A-CAM program. The Enhanced A-CAM program provides universal service high-cost support to participating carriers to serve consumers with 100/20 Mbps or faster broadband service to all locations served by the program, including some of the most difficult-to-reach areas of the country. This modernized program will provide additional universal service support to certain rural carriers in exchange for increasing deployment to more locations at higher speeds. The program also aligns deployment milestones with the National Telecommunications and Information Administration’s Broadband Equity, Access, and Deployment (BEAD) Program, requiring participating carriers to deploy to all locations within four years and also allows carriers that elect to participate in the Enhanced A-CAM program the opportunity to establish an enforceable commitment to locations they serve. An initial list of required locations to which deployment is required is included in the Authorization Report. Determination of locations an Enhanced A-CAM carrier is required to serve is subject to an adjustment process that will be completed no later than December 31, 2025. Carrier acceptances, organized by state, will be made publicly available at www. fcc.gov/general/rate-return-resources. This information will facilitate coordination with other funding programs and help avoid duplicative funding.

PCCA Journal|4th Quarter 2023 21 “The Universal Service Fund helps Arizonans in rural and low-income communities get access to affordable and reliable high-speed internet, but right now, large internet companies that profit from that expanded internet access don’t contribute their fair share,” Kelly said. “Our legislation will lower the cost of high-speed internet for consumers and rural providers and expand broadband connectivity throughout Arizona.” Specifically, the Lowering Broadband Costs for Consumers Act would: • Direct the FCC to reform the USF by expanding the base so that edge providers and broadband providers contribute on an equitable and nondiscriminatory basis to preserve and advance universal service. • Limit assessments of edge providers to only those with more than 3 percent of the estimated quantity of broadband data transmitted in the United States and more than $5 billion in annual revenue. • Direct the FCC to adopt a new mechanism under the current USF high-cost program to provide specific, predictable, and sufficient support for expenses incurred by broadband providers that are not otherwise recovered. • Limit the FCC’s authority over edge providers and broadband providers only to requiring contributions to the USF. The legislation has garnered support in the broadband industry. “NTCA applauds the introduction of the Lowering Broadband Costs for Consumers Act, which would promote more predictable and stable funding to preserve and advance the statutory mission of universal service,” said Shirley Bloomfield CEO, NTCA-The Rural Broadband Association. “As traditional telecommunications revenues decline, the assessment on the remaining consumers of such services increases, resulting in a disproportionate burden on those consumers even though they are not the most significant users of services or beneficiaries of underlying networks. Common-sense reforms like those directed by this legislation will shore up the foundation of universal service funding, spread contribution obligations more equitably among all of those that use and benefit from broadband networks, and ultimately help the low-income and rural consumers and schools, libraries, and rural health care facilities that depend on critical universal service programs.” Introducing the ReelLift™ Reel Management System, the contractor-tested way to save on set-up, handling and takedown for cable and wire projects. Get 50% in REEL savings Hydraulically lifts, repositions and transports reels in tight spaces Integrated bed design eliminates the need for a trailer Variable-speed controls for cable payout, retrieval and figure-8 deployment 800-534-5624 hydrabeds.com/utility Broadband News continued on page 22

PCCA Journal|4th Quarter 2023 22 MILWAUKEE® has taken the time to understand users’ needs and develop personal protective equipment from the ground up, delivering hard hats that allow users to adapt to each job and safety glasses that can be worn all day with lasting, fog-free lenses. MILWAUKEE® is focused on creating innovative PPE solutions that won’t slow users down, helping them STAY SAFE. STAY PRODUCTIVE.™ MORE LEARN or visit https://qr.mke.tl/2xs3y Broadband News Continued from page 21 On December 6, NTCA–The Rural Broadband Association released its “2023 Broadband/Internet Availability Survey Report,” highlighting the ongoing efforts of rural broadband providers to deliver better broadband services to rural Americans. Survey highlights include: • NTCA members continue to deploy fiber-to-the-premises (FTTP) networks that empower increasingly higher downstream and upstream speeds in rural communities. Approximately 84 percent of respondents’ customers on average can receive downstream speeds greater than or equal to 100 Mbps, with over 67 percent of customers on average having access to Gigabit downstream speeds. Upload speeds that are important for critical user applications like video conferencing, remote work, and school continue to increase as well, with nearly 82 percent on average realizing upload speeds of 100 Mbps or higher and 61 percent of customers on average having access to Gigabit upstream capability. These improvements in customer experience are driven by continuing efforts to expand the reach of robust and reliable underlying networks. The average proportion of customers served by this year’s respondents via fiber connections is nearly 84 percent, as well. • Customers are eager to subscribe to higher speeds as they become available. Nearly 60 percent of respondents’ customers on average subscribe to 100 Mbps downstream broadband or better, up from just over 49 percent in the 2022 survey. And for the second consecutive year, the 2023 survey found that subscriptions for services between 100 Mbps and 1 Gig downstream have become more popular than services between 25 and 100 Mbps. “NTCA’s Broadband/Internet Availability Survey has long tracked how our members have consistently led the charge in deploying the best possible broadband in deeply rural areas,” NTCA CEO Shirley Bloomfield said. “This year’s survey reinforces and underscores NTCA members’ abiding commitment to the communities they serve, advancing broadband built to last in rural America, and highlights how rural consumers are making greater use of these services.” The 2023 Broadband/Internet Availability Survey was conducted in August 2023, and 36 percent of NTCA’s members responded. The report can be found at https://www.ntca. org/sites/default/files/documents/2023-12/2023%20Broadband%20Survey%20Report%20FINAL.pdf. NTCA Survey Finds on Average 84% of Respondents’ Customers Are Served by Fiber