On 7 April 2011 the Federal Communications Commission (FCC or Commission) unanimously adopted an Order that significantly revamps its regulations governing the rates, terms, and conditions on which wireless and wireline communications providers attach their facilities to utility poles. The Commission has not comprehensively overhauled its pole attachment regulations since the 1990s, and it recognized that drastic changes in the marketplace have occurred and the need for changes to expand the reach and reduce the cost of broadband deployment. As Chairman Julius Genachowski noted, pole attachments are the "blood and guts" of promoting broadband deployment.

While the Commission has not released the text of its order, it announced the following key rule changes:

Pole attachment rates

The Commission acknowledged that the different pole attachment rates for attachments used to provide cable and telecommunications services under its existing regulations have distorted investment decisions, created an unlevel playing field in the broadband marketplace, and engendered confusion and litigation. To address these problems, and to spur greater competition in the broadband marketplace, the Commission adopted the formula for attachments proposed in its Notice issued last year. Telecommunications service attachment rates will be the higher of the rates for cable service attachments or a revised telecom rate; in most cases, the telecom rate will be the cable rate. With the benefit of the Commission's revised formula, competitors providing similar communications services will now pay similar pole attachment rental rates. The Commission also confirmed that wireless providers are entitled to the telecommunications service rate.

Facilitating timely deployment

Recognizing that existing utility attachment processes are too slow, too expensive, and too unpredictable, the Commission adopted rules to facilitate timely access to poles. These include a strict timeline to complete the attachment process: a five-month window for traditional attachments made in the communications space; and a six-month time frame for attachments made in a pole's electric space, such as pole-top-mounted wireless antenna attachments. The Commission provided lengthier timelines for attachment requests involving more than 300 poles.

While the Commission additionally provided utilities the ability to "stop the clock" in extraordinary circumstances, it gave communications providers a right to use outside contractors approved by the utility if the utility fails to meet the Commission-established access deadlines.

Chairman Genachowski noted that the Commissions' access-to-poles reforms are especially critical to deployment of wireless facilities. He anticipated that they would spur a $15 billion investment over the next six years in the deployment of Distributed Antenna Systems (DAS), which often attach to utility pole tops.

Forum for ILECs

The FCC acknowledged the need for greater oversight of the historic joint use relationships between electric utilities and Incumbent Local Exchange Carriers (ILECs). Accordingly, the Commission adopted a FCC complaint procedure for ILECs to resolve pole attachment disputes over rates, terms, and conditions and provided guidance for resolving such complaints. Until now, the FCC has not applied the pole attachment statute to ILEC attachments.

* * * In addition to these important rule changes, the Commission also announced modifications to its enforcement procedures and more severe penalties for unauthorized attachments.

Once the Commission releases the text of its Order, expected fairly soon, we will provide you with a further update on the substance of its Order.

* * * On 12 April at 2:00 pm EDT/11:00 am PT we are conducting a webinar titled, "FCC's 2011 Pole Attachment Decision: What's the Regulatory and Economic Impact?" to discuss the adopted order. If you wish to participate, please register here.