Notice: Function add_theme_support( 'html5' ) was called incorrectly. You need to pass an array of types. Please see Debugging in WordPress for more information. (This message was added in version 3.6.1.) in /www/wp-includes/functions.php on line 5831 What's up with LanCity Connect? - LanCity Connect

Introduction

Up until now, we made the agonizing choice to not share the details of the litigation between PPL and MAW with the public. This decision was not made lightly or to hide anything. This was a tough strategic decision. We pride ourselves on being a transparent company, but due to the nature of the situation, we believed it was best to let the courts handle the contractual dispute and not try our case in the media.

We recognize that staying quiet has been difficult for our customers. Therefore, we have decided to release this information to the public via the Lancaster News Paper (LNP), LanCity Connect’s website and Facebook page. We have nothing to hide, and our customers deserve to know why their service has either been disconnected or could be disconnected or why we have not reached your residence or business.

Please direct all questions and comments to support@lancityconnect.com.

Statement

In December of 2014, MAW Communications entered into an agreement with the City of Lancaster to rebuild the City’s Traffic and the Lancaster City Safety Coalition’s Camera network and to commence Pennsylvania’s first Community Broadband Initiative, LanCity Connect.

MAW worked with PPL, the City of Lancaster, and the Lancaster Safety Coalition to rebuild the Traffic and Camera network in 2015 (MAW_Email_Klokis). In 2016, MAW submitted all rebuild pole attachment records to PPL. PPL repeatedly refused this data from MAW (MAW Letter).

In late 2015 and early 2016, MAW applied for cable attachment applications to extend the backbone network for the Traffic, Camera, and LanCity Connect network. In 2016, MAW received excessively high pre-engineering and make-ready invoices from PPL, in MAW’s opinion and experience.

Make-ready is the process in which current attachments are either repositioned on the pole to make room for the new attachment or in cases where there is insufficient room for the attachment, the pole is replaced with a larger pole to accommodate the new attachments. Pre-engineering is the process in which the make-ready is determined. A new attacher, such as MAW is responsible for paying for both the pre-engineering and make-ready costs before attaching to a PPL pole.

PPL’s invoices averaged $202.95 per pole in pre-engineering costs and $1,035.96 per pole for make-ready. MAW found these charges to be up to ten times higher than historically seen from PPL or other PA pole owners. Consequently, these charges would increase the cost of the network up to or exceeding $2 million dollars in just pre-engineering and make-ready charges.

As pre-engineering and make-ready costs are only a portion of the costs associated with building a robust network, MAW and the City found these costs to be prohibitive to continue with a cost-effective extension of the Traffic and Camera network and the LanCity Connect network. Therefore, MAW formally disputed these charges in 2016 and began executive discussions with PPL to resolve the dispute. MAW was unsuccessful in reaching a resolution with PPL.

In 2017, the City of Lancaster initiated executive discussion with PPL but was unsuccessful at reaching a resolution as well. In August 2017, the City of Lancaster hired an outside law firm to send a letter to PPL formally requesting a resolution to the make-ready issue by early September 2017. If resolution was not met, the City of Lancaster and MAW would file for FCC mediation and file a formal complaint against PPL. PPL did not formally consent to FCC mediation and resolution was not met in September 2017.

In October 2017, unbeknownst to MAW and the City of Lancaster, Zito Media, a PA cable and internet provider filed a formal complaint against PPL citing PPL’s make-ready process, excessively high pre-engineering and make-ready charges, and unacceptable reasons for denial of access to PPL poles pertaining to debt collection. Zito submitted a revised complaint against PPL on November 13th 2017, as per FCC order as PPL had not provided Zito a copy of their pole attachment agreement prior to Zito Media’s first complaint submission.

In November 2017, just a month after Zito Media filed a formal complaint against PPL, PPL contacted the PA Public Utility Commission (PUC) alleging MAW had made exigent safety violations by attaching unauthorized attachments to PPL poles. In December 2017, MAW, PPL and the PA PUC met in the field to review all alleged safety violations. In late December 2017, the PA PUC opened an informal investigation into MAW’s attachments.

MAW hired a third-party engineering firm, Robson Forensics, to review the alleged exigent safety violations in December of 2017. The report concluded that there were no exigent safety violations made by MAW (MAW_Robson_Report). MAW submitted this report to the PA PUC.

By the end of January 2018, the PUC finished their informal investigation into MAW’s attachments (PUC_Letter_to_MAW_Safety Issues_Resolution). The PA PUC concluded that the attachments were not exigent safety violations and any cease and desist language was no longer enforced by the PA PUC.

On the same day as the field meeting, in December 2017, with PPL, the PUC, and MAW, PPL filed a lawsuit against MAW in the Lehigh Valley Court citing MAW’s alleged unauthorized attachments to PPL poles pose a public safety concern. MAW unwaveringly denied(s) these claims. This is just a little over a month after Zito Media filed a formal complaint against PPL and three months following the City and MAW’s letter requesting PPL enter in FCC mediation with MAW if resolution was not met by September 2017. PPL refused to agree to FCC mediation.

Throughout 2017, MAW deployed a service drop network in the North East and North West sections of the city. As per the 2003 Pole Attachment Agreement held between MAW and PPL, MAW was not required to apply for service drop attachments and was only required to apply for cable attachments. As Section 6.4 of the agreement states:

“With the exception of service drop attachments and lashing attachments to Licensee’s own cable, no initial or additional attachment is allowed on a PPL pole without the prior submission of an attachment installation application and PPL’s subsequent written authorization.”

To date, PPL has removed over 100 service drop attachments made by MAW citing these attachments are unauthorized as they were required to originate from an authorized attachment and may only be four poles, three spans in length.

MAW had hand-delivered all attachment records to PPL in 2016 but PPL rejected this information. Consequently, PPL did not have accurate records of MAW’s rebuild attachments. Therefore, PPL has indicated all MAW’s service drop attachments do not originate from an authorized attachment. Until this year, 2018: MAW was not aware that PPL classified the Traffic and Camera rebuild network as containing unauthorized attachments. Had MAW been aware of this, MAW would not have affixed service drops on PPL poles until the unauthorized attachments were resolved.

Although MAW has reminded PPL numerous times that MAW attempted to submit this data to PPL in 2016, PPL refused the data that would have clarified any attachments made by MAW in 2016 as part of the rebuild of the Traffic and Camera networks. A PPL employee confirmed this, on March 28th, 2018, in court testimony.

MAW has also requested that PPL identify where in the 2003 Pole Attachment Agreement or accompanying documents such as PPL’s Requirements for the Attachment of Communication Cable Facilities on PPL Poles (Appendix D) that it stipulates service drop attachments be no more than four poles, three spans in length, as MAW cannot find any record of this regulation.

PPL has denied MAW access to all PPL poles and therefore, MAW has not been allowed to reconnect any customers that have lost service or will lose service. Instead, PPL has stated that until MAW pays PPL for the 2016 disputed pre-engineering costs PPL will not review or approve any connections to PPL poles.

The FCC has been clear in their April 2011 Order that “denial of a request to attach must cite with specificity the particular safety, reliability, engineering, or other valid concern that is the basis for denial.” To further this clarity the FCC stated in the case of 1999 Kansas City Cable Partners DBA Time Warner Cable of Kansas City VS Kansas City Power & Light Company (KCPL):

“Neither can KCPL condition access on payment of a disputed claim. KCPL has insisted that all past due balances be brought current by Time Warner. Time Warner states that they fully intend to “pay a fair price for all work performed,” but indicates that the appropriate amount is in dispute. Debt collection is not permissible grounds for denial of access.”

Just as Time Warner stated in the 1999 FCC case, MAW has continually stated that MAW “intends to pay a fair price for all work performed” by PPL but the amount presented by PPL in 2016 is currently and has been in dispute since 2016. PPL’s denial of access has prevented MAW from reinstalling service to those disconnected and MAW is unable to determine when or if PPL will grant MAW access to PPL poles as MAW still disputes PPL’s 2016 pre-engineering and make-ready costs. This has also halted all LanCity Connect deployment schedules and installations.

According to Zito Media’s FCC complaint PPL filed on November 13th 2017, Zito Media alleges that PPL denied Zito access to poles until Zito has paid for all past disputed debt. Thus, allegedly forcing Zito, like MAW, to pay excessive pre-engineering and make-ready charges before PPL approves any further attachments made by Zito on PPL poles.

As many may not be aware, unfortunately, the FCC complaint process is extremely expensive and can take years to resolve matters between pole owners and attachers. The PA PUC has motioned to take over the regulation of pole attachments in Pennsylvania citing the time consuming and expensive FCC process and the need to accelerate the deployment of highspeed broadband throughout the state. Although this process is underway, it is still in the early stages of adoption. Throughout the state, pole owners and attachers have been highly supportive of the PA PUC regulating pole attachments as can be seen in the comments submitted by both pole owners and attachers alike. To see MAW’s comments to the PA PUC’s motion to regulate pole attachments, click here.

The make-ready process has been a hot button for pole owners and attachers for decades and has been the crux of many disputes and slow deployment of necessary highspeed broadband infrastructure throughout the country. In August 2018, the FCC passed One Touch Make-Ready, which allows an attacher to determine the make-ready necessary for all simple make-ready located within the communications space on a pole. This process will not only be more cost-effective for new attachers seeking to deploy high-speed broadband infrastructure but will also provide an accelerated timeline for deployment as well. Although OTMR has not gone into full effect to date, it is expected to be enforced as early as 2019.

Unfortunately for LanCity Connect customers, this entire ordeal has caused great stress and for some the loss of their service and for that MAW is sincerely sorry. MAW will continue to pursue this matter and fight for LanCity Connect’s customers to either remain in service or have their service re-installed. MAW also promises to continue to fight for cost-effective and accelerated broadband deployment in the City of Lancaster and across Pennsylvania. We thank all those who support us and sincerely apologize to all those who have lost faith during this messy litigation.

 

The FCC Regulations and the Make-Ready Process

Make-ready is the process in which current attachments are either repositioned on the pole to make room for the new attachment or in cases where there is insufficient room for the attachment, the pole is replaced with a larger pole to accommodate the new attachments. This process generally includes the rearrangement of one or more attachments to make room for the new attachments and in many cases, the pole does not require any attachments to be rearranged to accommodate the new attachment.

The make-ready process is only necessary if there is insufficient space for the new attachment to be installed in compliance with the National Electrical Safety Code or National Electric Code or to ensure continuity in the new attachers facility. Make-ready is not necessary for poles where there is enough space on the pole for the new attacher’s facilities. The new attacher is responsible for these costs associated with pre-engineering (determining the make-ready) and the just and reasonable resultant make-ready costs.

The Federal Communications Commission (FCC) oversees regulating all pole attachments including make-ready costs, annual pole attachment fees, and the timeline for applications to be processed. The FCC’s current enforceable application timeline is outlined below:

The Order establishes a four-stage timeline for attachment to poles, with a maximum timeframe of up to 148 days for completion of all four stages: survey (45 days), estimate (14 days), attacher acceptance (14 days), and make-ready (60-75 days). The Order applies this timeline to requests for attachment in the communications space on a pole—for both wireline and wireless attachments.

The FCC has also ordered that all make-ready costs be “just and reasonable” and that “denial of a request to attach must cite with specificity the particular safety, reliability, engineering, or other valid concern that is the basis for denial.”

 

PPL’s Make-Ready Process

Helpful 2003 PPL Pole Attachment Agreement Definitions and Sections:

1.8 Cable Attachment– The bolted attachment of Licensee’s cable or messenger to a PPL pole. It may also be attached by means of a lag, screw, or bracket. It shall be considered an attachment for which an attachment fee is required. A cable attachment supported by two bolts spaced more than one (1) foot apart shall be counted as two cable attachments.

1.13 Make Ready Work – All work required to be performed to prepare PPL’s poles for Licensee’s proposed attachments. This includes, but is not limited to, field investigations and engineering, notification of third-party attachers, transfer of existing PPL facilities, replacement of a PPL pole, and other changes necessary to enable the proposed attachments to conform to the requirements of Article 5.1.

1.18) Service Drop Attachment – A separate point of attachment on PPL’s poles used to support one or more service cables that extend from Licensee’s attachments on PPL’s poles to a point of service on a customer’s premises. This shall be considered a cable attachment for which an attachment fee is required.

Section 6 Attachment Installation

6.4) With the exception of service drop attachments and lashing attachments to Licensee’s own cable, no initial or additional attachment is allowed on a PPL pole without the prior submission of an attachment installation application and PPL’s subsequent written authorization.

 

To attach a cable attachment on a PPL pole, MAW must first submit an attachment application for PPL to determine the necessary make-ready per pole via the pre-engineering stage. This process is necessary for all attachments except for overlashing and service drop attachments according to MAW’s and PPL’s 2003 Pole Attachment Agreement Section 6.4.

Therefore, for MAW to build out necessary backbone infrastructure MAW must apply for each cable attachment made on a PPL pole. However, if MAW is installing service drop attachments, an application is not required. The application process is necessary to determine if make-ready is required on the pole prior to installing a new cable attachment not a service drop attachment.

Once MAW has submitted an attachment application, PPL has 45 days to review the application and determine the necessary make-ready per pole via pre-engineering. PPL then has an additional 14 days to submit an invoice to MAW. These invoices should include all pre-engineering costs and estimated make-ready costs associated with the attachment applications.

PPL’s invoices averaged $202.95 per pole in pre-engineering costs and $1,035.96 per pole for required make-ready. The graph below, provided by Zito Media, as part of their November 13th, 2017 FCC complaint against PPL demonstrates Zito Media averaged similar pre-engineering costs as MAW and had historically received significantly lower pre-engineering costs by other PA pole owners.

This is not MAW’s graph. It is used to demonstrate consistency between MAW’s and Zito Media’s experience with PPL pre-engineering charges.

MAW would need to connect to at least another 2000 poles to build out the remaining backbone network. Therefore, MAW estimated via PPL’s pre-engineering and make-ready costs that the cost of the network would increase up to or exceeding $2 million dollars in just pre-engineering and make-ready costs. The result is more than doubling the cost and time to complete the network.

Consequently, since pre-engineering and make-ready costs are only a portion of the necessary costs of building out a fiber-optic network, MAW considered these costs unreasonable and as a result, could not expand our existing network in PPL territory at these rates. MAW formally disputed these charges immediately in 2016 and began executive discussions surrounding the excessively high charges.

During discussions with PPL, in 2016, MAW learned that PPL had implemented a new software program to assist with determining necessary make-ready. PPL expressed that there was a glitch in the program that forced all new attachments to assume the topmost position on the pole.

By forcing the new attachment to the topmost position, the new attacher now must move all attachments that are currently on the pole down to new positions to place the new attachment on top of the pole’s Communications space. Consequently, forcing make-ready on nearly every pole as there are few poles that do not have any attachments located in the topmost position. This causes unnecessary make-ready work for the new attacher and in turn, increases the make-ready costs associated with each pole.

In many of these unnecessary make-ready cases, there is enough room on the pole for the new attachment to be installed in compliance with the National Electrical Safety Code and to allow for continuity in the new attacher’s facilities as demonstrated in the pictorial description below. These base images are directly from PPL’s application portal and depict PPL’s determined design and resultant make-ready for these poles. As depicted in the pictorial description, there is enough space on the pole to install a compliant attachment without make-ready work, although PPL is forcing MAW to relocate most of the attachments on the pole, when there is enough room on the pole without moving any attachments.

       

Click MAW_Pictorial_Description_of_PPLs_ Pole Attachment_Policy for a clearer PDF

version including NESC references.

PPL owns over 900,000 poles across Pennsylvania, PPL’s process forces all new attachers within PPL territory to go through unnecessary make-ready work that considerably increases the costs and time of deploying new facilities within their operating territory, such as the City of Lancaster; where PPL is the majority pole owner.

PPL explained that it would cost approximately $200,000 to resolve the glitch in the computer software. MAW offered to pay for the glitch to be resolved as this cost would be significantly less than the cost of the unnecessary make-ready forced by assigning the new attachment in the topmost position on the pole. PPL denied MAW’s offer to pay for the glitch to be resolved. Instead, PPL insisted that their new make-ready process is as stated, and it would not be altered.

 

Service Drop and Unauthorized Attachments

MAW’s largest service drop cable (black) in the middle of to two drinking straws (blue), for comparison.

Helpful 2003 PPL Pole Attachment Agreement Definitions and Sections:

1.14) Noncompliant Attachment – Any attachment made by Licensee that does not

conform to the requirements of Article 5.1.

1.18) Service Drop Attachment – A separate point of attachment on PPL’s poles used to support one or more service cables that extend from Licensee’s attachments on PPL’s poles to a point of service on a customer’s premises. This shall be considered a cable attachment for which an attachment fee is required.

 1.19) Unauthorized Attachment – Any attachment for which an annual pole attachment rental fee is required that is made by Licensee to a PPL pole without prior written authorization by PPL.

 

Section 5 Specifications and Safety of Attachments

5.1) The provisions contained in this Article shall apply to all attachments made by Licensee. All work undertaken pursuant to this Agreement shall be performed in accordance with the following, all of which are incorporated by reference in this Agreement: 

 Where a difference in specifications may exist, the more stringent requirements shall apply. It is the ultimate responsibility of Licensee to ensure that the provisions of this Article are adhered to.

Section 6 Attachment Installation

6.4) With the exception of service drop attachments and lashing attachments to Licensee’s own cable, no initial or additional attachment is allowed on a PPL pole without the prior submission of an attachment installation application and PPL’s subsequent written authorization.

 

In November 2017, PPL asserted to the PA PUC that MAW’s attachments created an exigent safety issue. This was resolved by the PA PUC’s letter stating the closing of the informal investigation into MAW’s alleged exigent safety violations defined as noncompliant attachments in the pole attachment agreement (PUC Letter to MAW Safety Issues Resolution).

By December 2017 PPL contended that all of MAW’s service drop attachments were unauthorized as MAW did not seek proper approval from PPL before affixing service drop cables to PPL poles and MAW did not have authorized attachments for which the service drop attachments originate.

Although, Section 6.4 of the 2003 Pole Attachment Agreement stated very clearly that service drop attachments did not require prior approval by PPL before attaching to PPL poles and had PPL accepted MAW’s 2016 records; MAW’s service drop attachments would originate from authorized attachments.

MAW and PPL agree that the LCSC transferred a portion of their cable attachments to MAW in 2015 which is currently numbering 418 pole attachments (LCSC transfer letter to PPL for pole attachments to MAW Release). MAW has been paying PPL attachment fees since 2016 for these 418 poles.

MAW informed PPL that the alleged unauthorized attachments were, in fact, service drop attachments, but PPL continued to argue that MAW did not affix service drop attachments, nor did they originate from an authorized attachment. MAW again reminded PPL that MAW had attempted to give PPL records of the rebuilt Traffic and Camera networks, but PPL refused this data in 2016 and that the contract stated MAW was not required to apply for service drop attachments (MAW Letter).

Over the course of the last year of litigation, PPL contends that service drop attachments can only be attached to no more than four poles, three spans in length and that application must be made by MAW and approved by PPL prior to attachment. While PPL could set the rules for Service drops attachments today. These were not the rules at the time of installation of the Service drops.

On numerous occasions, MAW has requested PPL to identify where the Service Drop regulation is stated in PPL documentation as MAW has been unable to find this regulation in the 2003 Pole Attachment Agreement or in Appendix D of the agreement, PPL’s Requirements for the Attachment of Communication Cable Facilities on PPL Poles. All changes to the attachment agreement, except NESC or government (FCC, PUC) changes, must be performed in writing and agreed to by both parties. PPL’s alleged Service Drop information is also not located on PPL’s website, nor their pole attachment application portal. However, neither PPL’s website, outside of Appendix D, nor PPL’s portal information is contractually binding according to the 2003 Pole Attachment Agreement.

Since June 2018, PPL has removed over 100 service drop attachments made by MAW. In November 2018, PPL informed MAW that an additional 50 service drop attachments would be removed resulting in the loss of service for an additional 57 LanCity Connect customers.

Although the Lehigh Valley Court did order that all unauthorized attachments must be either remedied or removed, PPL has not accepted any remediation plan of any attachments but instead insisted that all unauthorized attachments must be removed. Further, PPL is prohibiting MAW from removing our own facilities and is performing this work with an outside contractor.

MAW continually has expressed that although MAW agrees that PPL is within their contractual rights to remove any unauthorized attachments, MAW does not agree that the service drop attachments made by MAW are considered unauthorized attachments as the 2003 Pole Attachment Agreement states that service drop attachments do not need prior approval before affixing to PPL poles.

MAW also believes that had PPL accepted MAW’s rebuild records all of MAW’s attachments would originate from an authorized attachment.  Conversely, PPL has still refused to accept MAW’s records, therefore, concluding that MAW’s service drop attachments are unauthorized as they do not originate from an authorized attachment. MAW believes PPL has created a circular argument as to why MAW’s service drop attachments are considered by PPL as unauthorized attachments.

To date, 12 LanCity Connect customers have lost service due to removals of MAW’s service drop network and an additional 57 customers will lose service beginning the week of November 26th, 2018. Through attachment applications, MAW has requested to reinstall service to those customers. PPL has denied MAW access to poles and refused to process MAW’s attachment applications. The result of PPL’s actions; MAW is prohibited from to reconnecting any of our customers that have lost service or are scheduled to or will be scheduled to be removed by PPL.