On April 7, 2011, the FCC adopted a sweeping overhaul of its rules governing communications and cable attachments to electric utility poles that will likely reshape the pole attachment process for at least the next ten years. The FCC determined that these changes were needed because the existing pole access rules and attachment rates were obstacles to the widespread deployment of broadband services. For electric utilities, however, these new rules will impose significant regulatory, administrative, operational, and financial burdens.
Among other things, the FCC:
- Adopted a make-ready timeframe for utilities to allow pole attachments, with a maximum of 148 days for attachments in the communications space, 178 days for wireless attachments on pole tops, and an extra 60 days for large requests.
- Held that attachers may use contractors authorized by a utility to perform surveys and make-ready work for attachments in the communications space if a utility has failed to perform its obligations within the timelines. For wireless attachments above the communications space, the prospective attacher may file a complaint case if the deadlines are not met.
- Clarified that if a utility denies access, it must explain the specific capacity, safety, reliability, or engineering concern.
- Provided a right to Incumbent Local Exchange Carriers (ILECs) to file a complaint with the FCC challenging the rates, terms, and conditions of their joint use or joint ownership agreements with an electric utility.
- Lowered the telecommunications attachment rate to approximate the cable rate under Section 224(d).
- Clarified that wireless providers are entitled to the same rate as other telecommunications providers.
- Removed the cap on penalties for unauthorized attachments.
- Encouraged the negotiated resolution of disputes and pre-planning and coordination between pole owners and attachers, which will be taken into account in any enforcement action.
Please click here to view Fish & Richardson's summary of the FCC's new pole attachment rules, with brief descriptions of the new rules, references to the relevant portions of the FCC's Order, and citations to the FCC rules. This matrix will assist utilities in evaluating how their specific operations will be directly affected by the new pole attachment rules.