Tag Archives: pole attachment

FCC preemption of local street pole ownership takes effect in January

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The Federal Communications Commission wasted no time in publishing its new rules regarding how cities and counties can regulate (or, really, not) small wireless facilities in the federal register. That means most of the rules take effect on 14 January 2019, unless one of the promised lawsuits materialises and a court puts everything on hold.

The new rules don’t force local governments to do anything – the FCC doesn’t have authority. But state and federal courts do, and the intent is to set standards that judges will apply when settling disputes between wireless companies and local agencies.

From the FCC’s point of view, when the rules take effect, local governments will have to give mobile carriers and, perhaps, other wireless companies open access to street light poles, traffic signals and any other municipal property in the public right of way. The most the FCC thinks a city can charge for leasing out that space is $270 per year.

One time permit fees are supposed to be limited to recovering processing costs. The FCC thinks those should be capped at a total of $500 for all required permits, for up to five installations. California already has a law in place – proposition 26, passed in 2010 – that limits permit fees to actual costs, and cities and counties here have established processes for calculating them. In theory, that should take precedence over the FCC’s safe harbor number, but that’s still to be determined.

Annual lease fees are also supposed to be cost based, so the FCC’s $270 limit isn’t necessarily the final word. A lot depends on how those costs are defined and calculated. If it’s done via the same method that’s used to determine annual charges for attaching wireless equipment to privately owned utility poles, it might be less – in California, that cost is typically in the range of $25 per foot of occupied pole space per year. On the other hand, thanks to proposition 26, California cities and counties also have tested methods for determining actual costs, which might produce a higher figure.

Although the rules take effect in January, local governments can take an extra 90 days to figure out new aesthetic standards, which the FCC says must be published and be “no more burdensome than those applied to other types of infrastructure deployments”.

PG&E didn’t start any fires this week and Californians complain

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Pacific Gas and Electric began shutting down electric lines in high risk fire zones on Sunday night, as winds topping 50 miles per hour ripped through northern California. At last report, PG&E had cut power in seven counties – Amador, Calaveras, El Dorado, Lake, Napa, Placer and Sonoma. Crews inspected lines for damage yesterday, as PG&E gradually restored power to the majority of blacked out customers. The job is expected to be finished today.

On Sunday, alerts were broadcast widely. Residents in several other counties were also warned that the cuts might come, and that they should prepare. PG&E has an an opt-in alert system for customers, and county emergency services offices also got the word out.

The goal was to prevent disasters like the massive fire storms that killed dozens of people and burned hundreds of thousands of acres this year and last, including in densely populated residential areas. It’s impossible to know whether a disaster was prevented this time. All that can be said is that Cal Fire had three blazes on its hands yesterday – all were small and largely contained. There’s been no indication that electric lines had anything to do with them.

Naturally, this being California, people are upset about it. Many who have chosen to live and work in high fire risk areas whined about losing power. According to a story in the Weekly Calistogan by Cynthia Sweeney, one local businessman griped about his disappointment with PG&E. “Couldn’t they have given us a reprieve?” he said. “It’s sending a message that October is a scary time to come here”.

Duh.

Southern California Edison sent out similar warnings on Sunday and Monday, as Santa Ana winds hit. As of the company’s last update, no deliberate power cuts have been made.

San Diego Gas and Electric has proactively cut power due to fire danger in the past. It’s been tagged with billions of dollars in fire damage costs, including for one fire in which it shared responsibility for starting it with Cox Communications.

PG&E responsible for Yuba County fire, AT&T is in the clear Cal Fire report says

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Pacific Gas and Electric power lines were the cause of the Cascade fire in Yuba County last year, one of many fires that came to be known collectively as the “October 2018 Fire Siege”. That’s according to an investigation report released by the California Department of Forestry and Fire protection. However, unlike some of the other fires where PG&E was implicated, the cause was not the result of a failure to follow laws regarding utility line maintenance and operations.

According to a Cal Fire press release, the problem was unusually high winds hitting what appeared to be properly built and maintained electric lines…

A high wind event in conjunction with the power line sag on two conductors caused the lines to come into contact, which created an electrical arc. The electrical arc deposited hot burning or molten material onto the ground in a receptive fuel bed causing the fire. The common term for this situation is called “line slap” and the power line in question was owned by the Pacific Gas and Electric Company.

As a matter of routine practice, Cal Fire forwarded the report to the Yuba County district attorney, but according to the Los Angeles Times, “Yuba County prosecutors said Tuesday they would not press charges against the company”. That’s in contrast to three fires in Butte and Nevada counties around the same time, where Cal Fire said that PG&E violated the law and the district attorneys are figuring out next steps.

AT&T telephone lines were also on the same poles, but were not implicated as a cause of the fire, according to the report.

Although PG&E and AT&T apparently did not break any laws, that’s not the same thing as saying they are off the hook for civil liabilities. There’s nothing to indicate that AT&T will be caught up in any of that, but PG&E likely will be. Even if PG&E followed the rules and was only partly to blame, the law governing utility poles and lines says that if a utility is involved in causing the fire, it has to pay for all damage. Even if others share the blame. A new law passed at the end of the legislative session in August allows electric companies to share the cost – which in PG&E’s case will run well into the billions of dollars – between its shareholders and customers, subject to the approval of the California Public Utilities Commission.

Stalled federal bill preempting local pole ownership, authority gets a push

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Congress might jump into the tug of war between the Federal Communications Commission and local governments over control of municipal property located in the public right of way. According to a story in Politico, the chairman of the federal senate’s commerce committee, senator John Thune (R – South Dakota) wants to move his small cell preemption billS. 3157 – ahead as the current congressional term winds down.

As originally drafted, S. 3157 tracks closely with the “small wireless facility” preemption ruling issued last month by the FCC. Permit application review times would limited, in some cases to as little as two months. The bill goes beyond the FCC’s plan and says that any permit that hasn’t been approved or denied before the shot clock runs out is automatically granted.

The bill also limits the amount that cities and counties can charge to lease out poles they own. Lease rates would be calculated using the same formula used to split utility pole costs between electric utilities and telecoms companies. In California, a typical rate is $25 per year per foot of space occupied on a pole. The net result would likely be rental rates below even the $270 a year that the FCC considers reasonable. That compares to the Californian average, which runs between $500 and $900 per pole per year.

Politico says that Thune wants to bring local governments on board with his bill, but he’s having a hard doing that…

The measure faces opposition from several organizations representing local and state governments. “I don’t know if they’re ever going to get on and fully endorse this,” Thune told reporters on Thursday. “I think in the end it’ll be hard, unless the cities get to a better comfort level than where they are today, it would be hard to advance the bill just because they have obviously a lot of influence with senators.” He said his staff continues to negotiate with an eye toward finding consensus and says a hearing is a good idea in any case “because I think we need to elevate the issue.”

A federal law has a lot more impact than an FCC ruling. As it stands now, the FCC can’t order a city to lease out a pole or issue a permit. It can only establish standards that judges might or might not use to settle disputes between cities and mobile carriers. And its authority even to do that is in question – last month’s FCC decision faces years of litigation before its effect is fully known.

Congress, on the other hand, does have the power to preempt state and local authority when communications and interstate commerce is involved, and delegate the job to the FCC.

FCC backs off on timing, but not substance of municipal wireless property preemption

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The final version of the Federal Communications Commission’s ruling preempting local ownership of street lights, traffic signals and other publicly owned property in the public right of way has been posted. It gives cities and counties more time to comply with its diktats – that’s the major change I spotted last night as I was reading through it.

Originally, the ruling was set to take effect 30 days after it’s published in the Federal Register. That deadline was extended to 90 days, except for updated aesthetic requirements, which won’t come into play until 180 days after publication.

That’s assuming it has any effect at all. The U.S. Conference of Mayors promised to challenge it in court shortly after the FCC voted on Wednesday, mostly along party lines, to adopt the new rules. Other organisations representing cities and counties have likewise indicated that they’ll sue. Typically, that would also happen after it’s published in the Federal Register. It might be two or three months before publication, though. The Trump administration has to review it, primarily to make sure the red tape on it is properly tied.

The ruling shortens the time period – the “shot clock” – for local governments to make a decision on permit applications for “small wireless facilities” (which, by the FCC’s definition, aren’t necessary very small). For a new pole or tower, a city would have 90 days to reach a final decision. Colocation permits would have to be approved or denied within 60 days. The FCC wants to redefine “colocation” to include attachment to any existing structure, rather than to a structure that already has wireless equipment on it, as pretty much the rest of the world understands it. It might get away with it – federal courts have affirmed the FCC’s authority to set shot clocks.

But not to enforce them. That power still belongs to judges. So will the job of deciding whether lease rates for municipal property and permit fees are cost-based and reasonable – California law has something to say about that. Courts might or might not accept the FCC’s opinion – and that’s really all it most of the ruling is – regarding how Californian cities and counties should manage their affairs.

FCC preempts local property rights, gives street light poles to wireless companies

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Cities and counties shouldn’t take more than 60 days to process a permit to allow a wireless company to attach equipment to an existing structure, or more than 90 days if building a “small wireless facility” requires installation of a new pole or tower. That was the unanimous vote of the Federal Communications Commission yesterday. Democrat Jessica Rosenworcel joined her three republican colleagues and endorsed that particular section of an FCC ruling that also preempts local ownership of property that wireless companies might covet.

The rest of the decision, which gives wireless companies virtually unlimited access, at giveaway prices, to city and county-owned assets located in the public right of way, was approved on a party line vote. That permission specifically includes street light poles and traffic signals. Local aesthetic requirements are sharply restricted as well.

In her dissent, Rosenworcel called the decision overreaching and irresponsible

Three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards. This is extraordinary federal overreach.

I do not believe the law permits Washington to run roughshod over state and local authority like this and I worry the litigation that follows will only slow our 5G future. For starters, the Tenth Amendment reserves powers to the states that are not expressly granted to the federal government…

In addition, this decision irresponsibly interferes with existing agreements and ongoing deployment across the country. There are thousands of cities and towns with agreements for infrastructure deployment—including 5G wireless facilities—that were negotiated in good faith. So many of them could be torn apart by our actions here. If we want to encourage investment, upending commitments made in binding contracts is a curious way to go.

The final version of the ruling hasn’t been released yet, but there was no mention of any substantive changes from the draft published three weeks ago. It’s not a direct order to local governments – the FCC doesn’t have that authority, despite its rhetoric – but it does set out narrow guidelines that it expects federal courts to follow if mobile carriers start filing lawsuits challenging local lease contracts and permit requirements.

It’ll probably be three or four months before the FCC’s vote takes whatever effect it has. The Trump administration has to review it, which typically takes two or three months. Then it’s published in the Federal Register and comes into force a month after that.

That’s assuming it’s not blocked by a federal appeals court. A legal challenge was promised by the U.S. Conference of Mayors, which said the FCC’s action “misapplies federal law to federalise local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-ways and public property”.

The National Association of Counties and the National League of Cities also slammed the decision. Their joint statement said “the FCC is overlooking its overall goals to ‘build on the commonsense reforms adopted in state legislatures and town councils across the country”.

Cities, counties tell FCC that local property rights are beyond its authority

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With the Federal Communications Commission set to vote tomorrow on new rules it wants local governments to follow when issuing permits for “small wireless facilities”, support and opposition is flooding in from the usual directions. CTIA, the primary lobbying front for mobile carriers in Washington, D.C., met behind closed doors with all four commissioners last week (the fifth seat, formerly occupied by Mignon Clyburn, is vacant, awaiting confirmation of a democratic nominee, Geoffrey Starks).

In its legally required disclosure statement, CTIA “applauded the commission” for giving industry lobbyists pretty much everything they could possibly ask for. At least they’re being gracious about it.

Local governments, on the other hand, are not happy and dozens have signed onto to letters opposing the sweeping preemptions of local authority and property ownership that the FCC is proposing.

The City and County of San Francisco pointed out that an analysis done by Corning, a major industry vendor, that the FCC uses to back its assertion that high fees in urban markets will suck capital investment away from rural areas, doesn’t really say that…

Tellingly, the Corning model predicts that only a negligible amount of additional investment will occur in urban areas if pole application and access fees are lowered. Consequently, there is no basis for concluding that the Proposed Order will increase investment in rural areas or anywhere else.

A coalition of local government lobbying groups, including the National League of Cities and the National Association of Counties, said that the FCC doesn’t have the authority to tell states they don’t own and can’t control their own property, such as street light poles…

The Local Governments reject the premise that the Commission has the authority dictate the rates charged by municipalities for public property, or has the need to intervene on behalf of the wireless industry that has ample resources and leverage to negotiate reasonable compensation.

Referencing state small cell bills to support these caps is a non sequitur. The FCC’s authority over municipal rights of way is not comparable to that of the states. To the contrary, federal law has consistently preserved local rights of way authority from intrusion by the federal government. Purporting to follow the lead of state legislators not only ignores this long-standing Congressional intent, but also ignores the more than thirty states that did not enact legislation to address small wireless facilities, or opted not to impose fees caps in that legislation. Finally, it mistakenly assumes the Commission can or should substitute its judgement for that of state elected officials.

The joint letter also sets the stage for the inevitable court challenge. There’s a long road ahead before the FCC’s pending diktats have any practical effect.

Among my other sins, I assist local governments with wireless policy and lease negotiations. I’m not a disinterested commentator. Take it for what it’s worth.

Wildfire liability changes head into California law and onto your electric bill

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It’s up to the California Public Utilities Commission now to decide whether your electric bill will include billions of dollars worth of damage done by wildfires. Governor Jerry Brown signed senate bill 901 on Friday. Among other things, SB 901 allows privately owned electric utilities to raise prices to offset damage payouts due to fires that were, to one degree or another, their fault.

Utilities – electric and telecoms – have the right to plant and use poles along roads and waterways in California, with very few restrictions and no rental fees at all. The downside is that Californian law says that, in exchange, they face strict liability for any damage caused. Even if they’re only partly to blame, they pay the full tab.

With damage estimates from the past two years of monster wildfires climbing into the tens of billions of dollars range, and a growing pile of evidence linking electric lines to the blazes, fears of bankruptcy grew. One solution considered during legislative negotiations over the summer was to soften the strict liability doctrine and allow damages to be spread over any and all who might bear some of the blame for wildland disasters.

Those talks didn’t produce a result, so lawmakers went for Plan B: loosen regulations that restrict how electric utility damage payments are split between shareholders and customers, and let the CPUC decide who pays what. SB 901 was passed in the final hours of the legislative session, and now governor Brown has blessed it.

The deal doesn’t do much for telecoms companies. They set their own rates, without oversight by the CPUC. Telephone companies, particularly AT&T and Frontier Communications, will decide for themselves how to manage wildfire risks, to both their service lines and their bottom line. One solution, which doesn’t bode well for rural Californians, is to rip out copper infrastructure and replace it with low capacity wireless facilities. California lawmakers rejected an effort to streamline that process in 2016. It’s a reasonable bet to think it’ll be back on the table next year.

FCC commissioner frames preemption of local streetlight ownership as digital divide issue

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Big cities are blocking 5G deployments in rural communities with high permit fees and expensive aesthetic requirements for new wireless facilities. That’s the argument FCC commissioner Brendan Carr made at the Mobile World Congress Americas show in Los Angeles yesterday. He’s the principal author of new, draft rules that would set federal benchmarks that, he hopes, cities and counties will follow when processing permit applications.

If mobile carriers have to spend more money than they want to when they build out 5G networks in high value, high priority cities, then there won’t be anything left over for rural areas, his reasoning goes…

Despite all of that progress, there still are many communities, especially in rural America, that feel that they may be left behind. They want to see their residents get a fair shot at the new wave of economic opportunity that will come with 5G.

But they worry that the billions of dollars of investment needed to deploy next-gen networks will be consumed by high fees and long delays in big, “must serve” cities…

When I think about success—when I think about winning the race to 5G—the finish line is not the moment we see next-gen deployments in New York or San Francisco. Success can only be achieved when all Americans, no matter where they live, have a fair shot at fast, affordable broadband.

The draft rules would, in effect, extend the free and open access that mobile carriers have to the public right of way to government-owned assets, such as streetlights or traffic signals. Cities wouldn’t necessarily have to follow the FCC’s rulebook, but Carr assumes it would guide decisions made by federal judges when disputes end up in court.

Two other FCC commissioners – Michael O’Rielly and Jessica Rosenworcel – also spoke at the show. Both focused primarily on spectrum policy – how to make more frequencies available for mobile broadband service – and neither dwelled on wireless deployment issues.

But Rosenworcel did talk about the far future of wireless networks and what she apparently sees as the permanent trend of network densification – the need to build more and more cell sites to support ever faster and more reliable service. As the sole democrat on the Federal Communications Commission for the present, she might have taken the opportunity to put a little daylight between her and her colleagues on wireless deployment policy in general or local preemption in particular. She didn’t.

The FCC vote is scheduled for 26 September 2018.