Over the last year the FCC has prioritized regulatory reform to speed decision-making and reduce costs associated with broadband deployment. Its February 5th decision in a private dispute between Comcast Cable Communications and Appalachian Power Company (APCO) furthers these goals by promising to resolve legal issues faster. Specifically, its decision in the Comcast dispute indicates that, where possible, the Commission will use its adjudicatory powers to resolve disputes as early as possible, allowing deployment to proceed. Even parties that lose a particular case should welcome this reform as it saves them time and money from a pursuing a losing cause.
The dispute centered around Comcast’s use of utility poles owned by APCO. Existing laws generally allow broadband providers to place their equipment on poles owned by others. In return, pole owners have a right to be compensated for any necessary costs. Agreement on how to apply this general rule to specific cases can be contentious, however. In this case APCO argued that Comcast should pay the full cost of replacing poles that would have needed replacement anyway. Apparently, third parties had damaged some of the poles. Even though these poles would have to be replaced anyway, APCO insisted Comcast pay the full cost. Comcast argued it should only have to pay for costs that benefited it.
The Commission’s order was significant because it used new powers, proposed by the Free State Foundation, to reach its decision. Specifically, the FCC used an "accelerated docket" process meant to speed up broadband expansion. It also used a Rapid Broadband Assessment Team (RBAT) of FCC personnel which was formed in 2023 to “expedite the resolution of pole attachment disputes.” The RBAT determined the facts upon which the Commission made its judgement. In brief, the Commission unanimously ruled that Comcast was not responsible for bearing the burden of paying the costs that were caused by a third-party. Comcast was only responsible to the extent that it benefited from any pole replacement.
I applaud this for two reasons. The first concerns the substance of the Commission’s decision. Comcast should not bear responsibility beyond the marginal cost of its installations. To require more would unnecessarily increase the cost of broadband deployment which the Commission is supposed to further. In fact, since Comcast is undertaking this project as part of the federal Broadband Equity Access and Deployment Program, the additional costs would be partially funded by taxpayers. The decision also increases the ability of market forces to influence the final cost borne by each party.
The second reason is the use of an expedited process to resolve the dispute. The Commission was able to render its decision within 60 days of Comcast’s complaint. The presence of an experienced and neutral decision-maker promises to significantly reduce the cost of resolving future FCC pole attachment disputes. Finally, by providing parties with greater certainty about how it will rule, the FCC can encourage settlements. That should benefit everyone.
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