FCC’s 2015 pole attachment order upheld by circuit court

utility poles

The FCC’s 2015 pole attachment order was upheld in a ruling (PDF) yesterday by the Eighth Circuit Court, providing a potential win for competitive and incumbent providers expanding their fiber networks.

In 2015, a group of electric utilities, including Ameren Corporation, American Electric Power Service, CenterPoint Energy Houston Electric, and Virginia Electric and Power Company petitioned to review a November 2015 order of the FCC governing the rates that utility companies may charge telecommunications providers for attaching their wired facilities to utility-owned poles.

The FCC, which was joined by intervenors Incompas, National Cable & Telecommunications Association, Level 3 Communications, and USTelecom, opposed the petition.

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RELATED: FCC to accelerate broadband builds by creating parity for cable, telecom pole attachment rates

In delivering its decision, the court found that the November 2015 Order provided a “reasonable interpretation of the ambiguity” in Section 224 of the Pole Attachments Act.

“The FCC sought to eliminate the disparity between the Cable and Telecom Rates in order to avoid subjecting cable providers offering broadband service to the higher Telecom Rate, and to avoid rate disparity between states whose pole attachment rates are regulated by the FCC and those states that had elected to regulate pole attachment rates using the Cable Rate even for telecommunications providers,” the Court wrote. “Finding that the April 2011 Order’s presumptions of five attachers in urban areas and three attachers in non-urban areas were inadequate to achieve these goals, the FCC adopted the multiple cost allocators set forth in the November 2015 Order.”

The court added that this “approach represents a “reasonable policy” choice, and thus we defer to the FCC’s interpretation.”

Incompas, an industry advocate for competitive service providers, applauded the court’s decision as a way to enhance broadband expansion timelines.

“Pole attachment pricing and delays have held back the deployment of broadband networks by new companies seeking to provide better service, faster speeds and lower prices,” said Chip Pickering, CEO of Incompas, in a statement. “Pole attachment reform represents one of the key building blocks for promoting the continued deployment of competitive broadband services across the nation, and we applaud today’s court decision.”

Pickering also reiterated the organization’s case for a one-touch make ready (OTMR) process that allows more flexibility in how new entrants can get access to existing utility poles.

“We now hope the FCC takes the next, necessary step in spurring broadband deployment by allowing new attachers the option to invoke a one-touch, make ready process for pole attachments, which will provide more affordable, timely and efficient construction of competitive networks,” Pickering said.

Under the regulator’s 2015 order, the FCC granted a joint petition made by members of the cable and telecom industry to harmonize the attachment rate cost model for pole attachments, which would be at or near the cable rate formula level.

At that time, the FCC was joined by the House Communications Subcommittee, which was developing a legislative package and Federal Spectrum Incentive Act to accelerate broadband deployment.

An element of the lawmakers proposal includes a provision go expanding broadband providers' access to pole attachments.

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