Today, the FCC Wireline Competition Bureau released a Public Notice seeking to refresh the record on a Petition for Reconsideration filed by the National Cable & Telecommunications Association (NCTA), COMPTEL, and tw telecom in June 2011 seeking to change certain aspects of the FCC’s new telecommunications pole attachment rate formula to make the telecommunications and cable pole attachment rates equivalent even when the number of attaching entities differ from the Commission’s presumptions. Without changes to the formula, the telecommunications rate could significantly exceed the cable rate, thwarting the Commission’s effort to align the two federal pole attachment rates.

In April 2011, the FCC voted to amend the federal telecommunications rate formula for pole attachments in an effort to equalize pole attachment fees for cable and telecom attachers. However, the rates were equalized only when the presumptions of five and three attaching entities were applied in urban and rural areas, respectively. The NCTA/COMPTEL/tw telecom Petition in June 2011 requested that the Commission clarify or expand the telecom rate formula to “provide the corresponding cost adjustments scaled to other entity counts” because the telecommunications rate could exceed the cable rate by as much as 70 percent if the number of attaching entities used was less than the presumptions. No action had been taken on the Petition although parties filed comments supporting and opposing the Petition.

As detailed in our March 2015 Advisory, the Commission recognized the possibility that its recent reclassification of broadband Internet access as a telecommunications service in the Open Internet Order could open the door for pole owners to impose higher telecommunications pole attachment fees, typically by rebutting the attaching entity presumptions, and the FCC even cautioned utilities against taking such action. Remarks by FCC Chairman Thomas Wheeler in a speech delivered today at NCTA-INTX in Chicago, however, suggest that the Commission may be inclined to revisit the changes it made in 2011 and again revise the telecom rate formula to achieve rate parity. Chairman Wheeler stated:

I intend to ensure that you do not confront excessive rates for pole attachments.

Today the Wireline Competition Bureau is issuing a short public notice calling for comment on the pending NCTA and COMPTEL petition for reconsideration seeking to clarify the Commission’s intent from its 2011 reforms to level-set the cable and telecommunications rates for pole attachments.

Once the record is refreshed, my expectation is that a recommendation will be made to the full Commission to take any action it can to further align cable and telecommunication rates.

Comments will be due 21 days after publication of the Public Notice in the Federal Register, which has not yet occurred, and reply comments will be due 10 days thereafter.