On August 4, 2016, the Ontario Energy Board (OEB) released its
Decision in a motion brought by cable and
telecommunications carriers (the Carriers) seeking to review and
vary the OEB's prior approval of pole attachment fees charged
by Hydro One Networks Inc. (Hydro One). The Carriers argued that
the previously approved charge of around $37 per attachment should
be reduced because it includes costs that should not be included in
the fee. In the Motion Decision, the OEB agreed that the pole
attachment fees should be changed, but decided that the proper
charge should be increased to $41.28, mostly because the number of
"attachers" per pole is lower than had been forecast
(meaning that the total pole attachment costs are to be allocated
to a smaller number of attachments). The result is that the
Carriers will be paying more because of their review motion.
It is clear that the OEB's Motion Decision is not the final word on the
level of pole attachment fees to be charged to Carriers by Ontario
electricity distributors. This continues to be a contentious
The Motion Decision setting Hydro One's pole
attachment fees, as well as the recent OEB decisions on pole
attachment fees for Toronto Hydro (set at $42, as discussed
here) and Hydro Ottawa (set at $53, as discussed
here), are all based on the application of the OEB's
current methodology for determining such fees. That methodology,
which was approved in a 2005 generic proceeding (the CCTA case), is now being revisited by the
In November 2015, the OEB commenced a generic process to
determine the approach to set future wireline pole attachment fees.
In an earlier
post, and in a case comment published in the Energy Regulation Quarterly, we discussed the
process that the OEB will undertake to review these fees, with
assistance from a stakeholder working group and an expert
consultant. According to the OEB (see here), its review of pole attachment fees
"will consider the methodology used for determining charges,
including the appropriate treatment of any revenues that carriers
may receive from third parties."
As explained in a previous
post, the Hydro Ottawa decision is currently under appeal by
the Carriers to the Divisional Court of Ontario. That appeal is
scheduled to be heard in late September 2016. Among other things,
the Carriers are asking the Court to quash the Board's Order
approving the pole attachment fee and to adjourn any rehearing
until after the OEB completes its generic process reviewing how
pole attachment fees should be set in the future. In the meantime,
though, there does not appear to have been any progress in the
OEB's generic proceeding (the record of the case shows no filings since
It will be interesting to see how the various proceedings
related to pole attachment fees (including any appeal by the
Carriers of the Motion Decision) develop. While it seems quite
likely that future pole attachment fees will be much higher than
the amount set in the CCTA case ($22 per attachment), it is by no
means clear what will the future level will be.
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