Pole attachments are attracting increased attention because of their importance to promoting the deployment of broadband facilities, including those financed by the Broadband Equity, Access, and Deployment (BEAD) program. As part of BEAD’s efforts to expand broadband coverage into all unserved and underserved areas, providers will have to obtain approval to work on millions of poles. The time and cost associated with this task will have a large effect on a project’s success in bringing Internet coverage to new households.
Last week the FCC’s Wireless Competition Bureau issued a Public Notice and Press Release regarding state regulation of pole attachments. The Notice informed states of their responsibilities for state regulation. These include:
- Issuing rules and regulations implementing the state’s regulatory authority.
- Regulating rates, terms, and conditions of pole attachments.
- Establishing procedures for resolving disputes.
The Notice also requested public comments on how the FCC should ensure that state regulation is effective. This includes whether the Commission has a duty to review state certifications to ensure the regulatory regime is adequate to meet the requirements of the Communications Act of 1934. The FCC also seeks comments on what else it can do to ensure that attachers in state-regulated states are not subject to unnecessary costs and delay.
As I wrote in a previous blog, ownership and regulation of poles is not always straightforward. According to one study and analysis, pole regulation is “scattershot” and “highly fragmented.” Poles are owned by a number of different entities including utilities, local exchange companies, and government entities. Poles in many states are regulated by states, not the federal government.
The FCC regulates most poles under Section 224 of the Communications Act of 1934. Its rules lay out processes and timelines for attachers and pole owners when the former seek to attach communications infrastructure to poles. However, the provision gives states the option of “reverse-preemption” by certifying that they will regulate pole attachments in their state. As of now, 23 states and the District of Columbia have taken this option.
The FCC’s Notice is important because pole attachments can have a large impact on project cost and completion. According to the above study, BEAD-funded projects will touch an estimated 3,954,030 utility-owned poles across 2,053 electric utility service territories. Current plans are for aerial fiber to cover 188,287 miles. Pole-related costs for BEAD projects could range from $534 million to $4.63 billion. The authors find that many of the poles involved are not regulated by the FCC. It is clear that the availability of pole attachments on reasonable terms is important to furthering broadband deployment.
The Commission also seeks information on how it can improve the regulation of pole attachments in the states that have chosen to regulate attachments themselves. One way is to ensure that any adjudications are timely and effective. Delays in obtaining permits can have a significant impact on the cost and even viability of broadband deployments, including BEAD projects. This request is timely given the history of the dispute between Comcast and Appalachian Power Company. Appalachian Power sought to charge Comcast for the full replacement cost of damaged poles even when a portion of the damage was caused by third parties. Comcast demurred. The FCC quickly issued a judgment favoring Comcast. However, several months later the dispute is still delaying work. Both parties have filed documents alleging that the other party is not abiding by the judgment. Rulings that come late or that cannot be enforced will do little to address the problem.
Another possibility is to allow non-deployment BEAD funds to be used to give states the resources they need to provide effective permitting. BEAD funding represents a huge increase in the effort to extend Internet coverage. As the FCC notes, increased investment has led to extensive new deployments in recent years, resulting in a significant increase in pole attachment applications for large numbers of utility poles. Many states and localities may lack the personnel and experience needed to deal with this sudden increase in volume.
In conclusion, the FCC is wise to focus on the issue of state regulation. State rules should be essentially equivalent to FCC regulations to ensure that attachers in reverse-preemption states do not experience prolonged delays and unreasonable costs. As the Notice says: “[S]tate pole attachment regulation can either advance [ubiquitous deployment of next-generation broadband] through clear and effective rules or become a roadblock to such deployment if a state adopts a pole attachment regime that is incomplete or unclear or fails to adopt pole attachment regulations in the first instance.”
Broadband availability is closely linked to economic growth in a particular area. It benefits everyone when the regulatory reviews needed to effect deployment speed this benefit rather than delay it.
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