Supreme Court clears way for lower fees, easier access to utility poles

9 October 2013 by Steve Blum
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More competition for the communications zone.

A standard attachment fee of $7 per foot of vertical space and permission for wireless companies to install equipment on utility poles was blessed Monday by the U.S. Supreme Court. It declined to hear an appeal from a broad group of electric utilities that objected to new pole attachment rules adopted by the FCC in 2011.

The electric utilities claimed that the FCC and the lower appeals court that heard the case misinterpreted federal law, with the result

The FCC’s one-sided regulation of the century-old ‘joint use’ or ‘joint ownership’ relationship will upset well established private contractual relationships to the unfair benefit of ILECs and the enormous detriment of the electric utility industry. FCC jurisdiction will cause the transfer of hundreds of millions of dollars annually from electric utilities and their ratepayers to telephone companies via reduced attachment rentals. Even more significantly, it could cause telephone companies to exit joint pole ownership altogether, since the FCC’s attachment rules are so favorable as compared to joint use.

In response, the FCC said that it was following the will of Congress

Congress’s goal of promoting competition under the Act would be well served by ensuring just rates for ILECs, especially given that ILECs may not have market power with respect to new video and other services they have offered in recent years…Noting that reducing pole rental rates could spur investment in broadband, the Commission emphasized that it would continue to monitor the outcomes of the market and the FCC’s regulatory regime to assure that the new rule created the expected consumer benefits.

All the filings and counter claims are available on the excellent SCOTUS Blog. The Baller-Herbst law group has a thorough primer on the FCC’s 2011 attachment rules, albeit written from the power industry’s perspective.

No word from the FCC on what the next steps will be – it’s shut down along with much of the rest of the federal government. It even took down its website, apparently because it’s non-essential.

Pole attachments (and conduit, duct and right of way access) are also regulated at the state level here, so the FCC’s rules might have less of a practical effect in California. I don’t know exactly what the ruling will mean yet. Details are still to come.