Pole attachment rules

Date: 04/07/2011

Summary

On April 7, 2011, the Federal Communications Commission reformed its pole attachment rules to streamline access and reduce costs for attaching broadband lines and wireless antennas to utility poles across America -- a key component of broadband infrastructure.

The FCC adopted rules establishing a specific timeline for access, improvements to our enforcement process, a revised formula for the telecommunications access rate, and a process to ensure just and reasonable rates, terms and conditions for pole attachments by incumbent LECs. In particular, this Order takes the following actions:

1. Timeline. 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. As a remedy in cases where the survey or make-ready work is not completed on time, attachers are permitted to engage utility-approved independent contractors to do the work. This self-effectuating remedy—based on a successful model that has been working in the State of New York for several years—is balanced by limitations on the number of poles per month that may be subject to the timeline, and the ability of the utility to temporarily stop the clock for legitimately exceptional circumstances. We adopt a modified timeline for wireless attachments above the communications space, for which we provide a total of up to 178 days and a complaint remedy. We also adopt longer timelines for requests to attach to a large number of poles (more than 300 poles or 0.5 percent of a utility’s total poles within a state, whichever is less), for which we provide an additional 15 days for survey and 45 days for make-ready, for a total of up to 208 days for attachments in the communications space and 238 days for wireless attachments above the communications space.
2. Attachments. The FCC also concludes that if an electric utility rejects a request for attachment of any piece of equipment, it must explain the reasons for such rejection—and how such reasons relate to capacity, safety, reliability, or engineering concerns —in a way that is specific with regard to both the type of facility and the type of pole. We further conclude that section 224 allows attachers to access the space above what has traditionally been referred to as “communications space” on a pole, but only using workers that are qualified to work above the communications space.
3. Rates. The Order reinterprets the telecommunications rate formula for pole attachments consistent with the existing statutory framework, thereby reducing the disparity between current telecommunications and cable rates. Specifically, different interpretations of the term “cost” in section 224(e) yield a range of rates from the existing fully allocated cost approach at the high end to a rate closer to incremental cost at the low end. Balancing the Commission’s broadband goals with the interest in continued pole investment, we adopt a definition of cost that yields a new “just and reasonable” telecommunications rate. This new telecom rate generally will recover the same portion of pole costs as the current cable rate. The Order also confirms that wireless providers are entitled to the same rate under the statute as other telecommunications carriers.
4. Incumbent LEC Attachments. Historically, incumbent LECs owned roughly as many poles as electric utilities, and were able to ensure just and reasonable rates, terms, and conditions for pole attachments by negotiating “joint use” agreements. Given evidence in the record about current market conditions, however, we identify a need for targeted Commission oversight to ensure just and reasonable rates, terms, and conditions that might not otherwise result from negotiations standing alone. Revisiting our prior interpretation of the statute, we allow incumbent LECs to file pole attachment complaints if they believe a particular rate, term or condition is unjust or unreasonable, and provide guidance regarding the Commission’s approach to evaluating those complaints and what the appropriate rate may be (whether the new telecommunications rate or another rate).
5. Enforcement. The Order adopts several measures to encourage negotiated resolution of pole attachment disputes, including a requirement that the complainant engage or attempt to engage the other party in good faith “executive-level discussions” prior to the filing of a complaint at the Commission. The Order declines to amend the “sign and sue” rule, which allows an attacher to challenge the lawfulness of terms in an executed pole attachment agreement where the attacher claims it was coerced to accept those terms in order to gain access. The Order also declines to adopt rules for compensatory damage awards at this time. The Order also removes the cap on penalties for unauthorized attachments and clarifies that Oregon’s approach to penalties for unauthorized attachments (which includes per-pole penalties, notice requirements, and a “joint use forum” for resolving disputes) is a reasonable model for contract terms in pole attachment agreements. Further, this Order encourages pre-planning and coordination among pole owners and attachers to the greatest extent, and as early in the process, as possible. To encourage such pre-planning and coordination, any enforcement proceedings will include consideration of such communication between the parties.
6. Reconsideration Issues. The Order resolves multiple petitions for reconsideration and addresses various points regarding the nondiscriminatory use of attachment techniques. Among other things, the FCC clarifies that a utility’s use of an attachment technique in the electric space does not obligate it to allow the same technique in the communications space; and that there is not “insufficient capacity” simply because a utility must rearrange its electric facilities to accommodate an attachment.
7. Proposals Not Adopted. The Order declines to adopt proposed requirements regarding the collection and availability of information about the location and availability of poles, as well as proposed rules regarding a schedule of charges, phased payment for make ready work, and the designation of a single managing utility for jointly owned poles. However, the FCC clarifies and emphasize that it does expect joint owners to coordinate and cooperate with each other and with requesting attachers in order to meet their independent obligations to successfully implement the timeline for pole attachments.

For more, see http://benton.org/node/55477 or http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-305620A1.doc

The rules went into effect on July 12, 2011.

Description

On May 20, 2010, the Federal Communications Commission adopted an Order and Further Notice of Proposed Rulemaking that implements key recommendations of the National Broadband Plan for promoting broadband deployment and competition. The Order and Further Notice will make broadband more affordable and available by speeding and reducing the costs of access to an essential piece of infrastructure: utility poles.

The FCC's order aims to reduce costs and speed access to poles by clarifying the statutory right of communications providers to use the same space- and cost-saving techniques that pole owners use, such as placing attachments on both sides of a pole. The Order also establishes that attachers have a statutory right to timely access to poles.

The Further Notice seeks comment on revising pole attachment rates to make them as low and as close to uniform as possible, reducing the disparity between current telecom and cable rates. Different rates for different types of firms using the same space on a pole makes little sense when the cost of providing the space is the same to the utility pole owner. Disparate rates can affect investment decisions and product offerings, resulting in fewer competitive choices for consumers.

The Further Notice also seeks comment on a specific timeline to govern each step of the pole attachment process, while still providing flexibility to accommodate safety concerns and special circumstances, such as natural disasters.

Finally, the Further Notice proposes rules to speed resolution of disputes, which can delay delivery of new, competitive offerings to consumers.

Issues

Currently, access by service providers to poles can be slow, costly, and mired in long disputes. The National Broadband Plan recognized that one way to lower the costs of telecommunications, cable, and broadband deployment and promote competition is to reduce the cost of access to infrastructure. The Plan found that the impact of utility pole attachment rates on broadband can be particularly acute in rural areas, where there often are more poles per mile than households.

I. Improving Access to Pole Attachments
1. Make-Ready Timeline
2. Use of Outside Contractors
3. Other Options to Expedite Pole Access
4. Improving the Availability of Data

II. Improving the Enforcement Process
1. Revising Pole Attachment Dispute Resolution Procedures
2. Efficient Informal Dispute Resolution Process
3. Remedies
4. Unauthorized Attachments
5. The “Sign and Sue” Rule

III. Pole Rental Rates
1. Background
2. Effects of Current Pole Rental Rates
3. USTelecom and AT&T/Verizon Broadband Rate Proposals
4. Reinterpreting the Telecom Rate
5. Incumbent LEC Rate Issues

Comment due date: 08/16/2010

Comment reply due date: 09/13/2010