Electric companies argue FCC has no authority over power lines

by Steve Blum • , , , ,

Powerlines

Investor-owned electric utilities are challenging the one touch make ready (OTMR) rules issued by the Federal Communications last year. It’s part of a broader appeal of two decisions that the FCC made last year: the August 2018 wireline deployment decision and the September 2018 wireless deployment decision.

In those two decisions, the FCC issued an expansive set of preemptions that overruled local ownership of assets in the public right of way (such as streetlight poles), state and local timelines for wireless permit decisions, schedules for work in the public right of way, and generally took industry-friendly positions on issues that affect the ability of telecoms companies to install facilities – wireline or wireless – at will. All the challenges to both decisions have been bundled into a single proceeding at the federal ninth circuit appeals court, based in San Francisco. Most of the issues were consolidated into a single case, but questions about the legality of the FCC’s OTMR and related utility pole access rules are being handled separately.

Nine privately owned electric companies joined together to try to overturn the FCC’s OTMR rules. The group does not include Pacific Gas and Electric, Southern California Edison or San Diego Gas and Electric, California’s major investor-owned utilities. That’s presumably because California has exercised its option under federal law to regulate utility poles itself – the specific federal rules in question don’t apply here. However, the core arguments made against the FCC’s rules could likewise be made against any OTMR requirements that the California Public Utilities Commission might consider in the future.

The key objection is that the FCC’s new utility pole regulations go beyond its authority over telecoms and encroach – literally and figuratively – on electric utility’s (and state regulators’) domain…

The [August wireline decision] dramatically changed course and created a “self-help remedy” to allow new attachers to use a utility-approved contractor to complete required make-ready work above the communications space (including in the electric supply space), when utilities and existing attachers have not met the FCC’s make-ready work deadlines to perform work preparing a pole for a new attachment…

Because [federal law] limits the FCC’s authority only to matters attendant to “pole attachments” and defines the term “pole attachment” in such a way as to exclude attachments made by an electric utility pole owner, the FCC does not have the authority to regulate any equipment maintained by an electric utility.

Publicly owned electric utilities are also appealing the August and September decisions, but they’re following the same general track as other municipal challengers. In their case they’re also arguing that federal law specifically bars the FCC from regulating them.