On 7 April 2011 the Federal Communications Commission (FCC or
Commission) unanimously adopted an Order that significantly revamps
its regulations governing the rates, terms, and conditions on which
wireless and wireline communications providers attach their
facilities to utility poles. The Commission has not comprehensively
overhauled its pole attachment regulations since the 1990s, and it
recognized that drastic changes in the marketplace have occurred
and the need for changes to expand the reach and reduce the cost of
broadband deployment. As Chairman Julius Genachowski noted, pole
attachments are the "blood and guts" of promoting
broadband deployment.
While the Commission has not released the text of its order, it
announced the following key rule changes:
Pole attachment rates
The Commission acknowledged that the different pole attachment
rates for attachments used to provide cable and telecommunications
services under its existing regulations have distorted investment
decisions, created an unlevel playing field in the broadband
marketplace, and engendered confusion and litigation. To address
these problems, and to spur greater competition in the broadband
marketplace, the Commission adopted the formula for attachments
proposed in its Notice issued last year. Telecommunications service
attachment rates will be the higher of the rates for cable service
attachments or a revised telecom rate; in most cases, the telecom
rate will be the cable rate. With the benefit of the
Commission's revised formula, competitors providing similar
communications services will now pay similar pole attachment rental
rates. The Commission also confirmed that wireless providers are
entitled to the telecommunications service rate.
Facilitating timely deployment
Recognizing that existing utility attachment processes are too
slow, too expensive, and too unpredictable, the Commission adopted
rules to facilitate timely access to poles. These include a strict
timeline to complete the attachment process: a five-month window
for traditional attachments made in the communications space; and a
six-month time frame for attachments made in a pole's electric
space, such as pole-top-mounted wireless antenna attachments. The
Commission provided lengthier timelines for attachment requests
involving more than 300 poles.
While the Commission additionally provided utilities the ability to
"stop the clock" in extraordinary circumstances, it gave
communications providers a right to use outside contractors
approved by the utility if the utility fails to meet the
Commission-established access deadlines.
Chairman Genachowski noted that the Commissions'
access-to-poles reforms are especially critical to deployment of
wireless facilities. He anticipated that they would spur a $15
billion investment over the next six years in the deployment of
Distributed Antenna Systems (DAS), which often attach to utility
pole tops.
Forum for ILECs
The FCC acknowledged the need for greater oversight of the historic joint use relationships between electric utilities and Incumbent Local Exchange Carriers (ILECs). Accordingly, the Commission adopted a FCC complaint procedure for ILECs to resolve pole attachment disputes over rates, terms, and conditions and provided guidance for resolving such complaints. Until now, the FCC has not applied the pole attachment statute to ILEC attachments.
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In addition to these important rule changes, the Commission also
announced modifications to its enforcement procedures and more
severe penalties for unauthorized attachments.
Once the Commission releases the text of its Order, expected fairly
soon, we will provide you with a further update on the substance of
its Order.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.