Last chance challenge to FCC pole attachment rules

by Steve Blum • , , ,


Crowding in on a deal.

The U.S. Supreme Court might have the final say over whether incumbent telcos get the same pole attachment price breaks as cable and new telecoms companies. The base FCC-mandated rate is $7 per attachment per year, assuming it only takes up one foot of vertical space on a pole.

In 2011, the FCC extended that rate to all. It was originally thought to apply only to new entrants into the telecoms business, including cable companies. But the FCC decided it also applied to existing agreements, which was a surprise to power companies that didn’t think Congress intended for that to happen.

Compared to incumbent telephone companies that trace their lineage back to the 19th century, cable is the new kid on the pole. Telcos were working out joint arrangements with electric companies more than a hundred years ago and, unlike cable companies, they too owned poles, which made for level negotiating ground.

Which is the gist of the power industry’s legal challenge. It contends that the FCC is trying to solve a problem that 1. Congress didn’t delegate to it and 2. doesn’t exist in the first place.

So far, federal courts haven’t bought it. Two lower courts sided with the FCC; now the power industry is asking the Supreme Court to take a third look. It might be a forlorn hope. Last month, the court showed significant deference to the FCC’s own assessment of how far its authority extends in a ruling that affirmed limits on how long local governments can take to process permits for wireless sites.