On July 20, the FCC requested public comments on a NCTA petition for a declaratory ruling that would reduce barriers to attaching fiber cables to replacement utility poles in unserved areas. The requested ruling would require utility pole owners to share in the cost of new poles in those areas. It also would put pole attachment complaints in unserved areas on the Commission's accelerated docket for faster resolution.
NCTA's proposal for a declaratory ruling on utility poles in unserved areas appears legally supportable. By granting the petition, the Commission can help accelerate deployment of broadband Internet networks and increase access to Americans who need it.
Section 224 of the Communications Act authorizes the FCC to "regulate the rates, terms, and conditions of pole attachments to provide that such rates, terms, and conditions are just and reasonable, and . . . adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions." The Commission's implementing rules govern pole attachments in about 30 states. The remaining states have opted to regulate pole access and rates under their own rules. Also, Section 224 doesn't apply to utility poles owned by municipalities or cooperatives. Rules regarding pole attachments are necessary to keep utility pole owners from exercising monopoly power to charge above-market rates for leasing access to poles and, therefore, driving up consumer prices for services that depend on such access.
When broadband networks are deployed to unserved areas, the existing utility poles often need to be replaced to allow for new attachments. Apparently, some utility pole owners try to push all the costs of replacing their poles onto cable operators or wireline telecommunications providers as a condition for allowing attachments. But saddling providers with the entire expense of replacing old poles is unreasonable and it significantly impedes efforts to reach unserved Americans.
There are good reasons why owners should bear responsibility for some of the expense of replacing their utility poles. Utility poles have limited lifespans, and even in the absence of renters the owners eventually incur costs to replace old poles with new ones. Also, owners receive the benefit of increased revenues through upgraded poles that have expanded space for leasing. Recognition that owners ought to share in the costs of replacing their poles is consistent with Section 1.1408(b) of the Commission's rules, which provides: "The costs of modifying a facility shall be borne by all parties that obtain access to the facility as a result of the modification and by all parties that directly benefit from the modification" (emphasis added).
Cable operators and wireline telco providers should be obligated to pay only the incremental costs that they cause in hastening the replacement of old utility poles with new ones. The Commission ought to adopt a formula for apportioning pole attachment replacement costs, and thereby reduce a significant barrier to broadband deployment in unserved areas.
Additionally, the Commission can facilitate faster deployment to Americans who lack access to broadband Internet services by putting pole attachment complaints involving unserved areas on the agency's Accelerated Docket. The Accelerated Docket includes a 60-day timeframe for resolving disputes more quickly. This matter is clearly within the Commission's discretion, and it is a common sense measure for speeding up network deployment.
By taking action on NCTA's pole attachments petition, the Commission can take a modest, but important, step to reduce infrastructure cost barriers that otherwise impede bringing broadband more quickly to all Americans.
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