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FCC’s Broadband Plan Recommends Changes To Pole Attachment Rules

March 18 , 2010
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The National Broadband Plan delivered by the FCC to Congress on March 16th recommends that the FCC adopt through rulemakings a number of changes to the current rules governing both cable operator and telecommunications provider access to utility poles, conduits and public rights of ways. Specific recommendations include:

Promote uniform rental rates for attachments by cable operators and telecommunications providers by adjusting the telecommunications rate formula so that rates are lower and as close to or the same as those produced by the cable television rate formula.
Implement rules that lower the cost of the make-ready process, including:

Establishing a standard schedule of charges for the most common categories of work (such as engineering assessments and pole construction).
Codifying the requirement that gives attachers the right to use space- and cost-saving techniques such as boxing or extension arms.
Allowing prospective attachers to use contractors to perform engineering assessments and technical make-ready work such as surveys.
Linking the payment schedule for make-ready work to the actual performance of that work, rather than requiring payment up front.

Establish precise timelines for each step of the attachment process.
Reform and streamline the process for resolving attachment disputes.
Create a data management system that ensures that information about utility poles and conduits is up-to-date, readily accessible and secure.
Initiate a task force with state, local and tribal representatives to develop public rights-of-way guidelines (including guidelines for what constitutes “competitively neutral,” “nondiscriminatory” and “fair and reasonable” rights-of-way practices and fees) to ensure that best practices from state and local government are applied nationally.

The Broadband Plan also encourages Congress to consider amending the governing statute (Section 224) with a nationally uniform statutory framework that would provide that:

All poles, ducts, conduits and rights-of-way be subject to a single regulatory regime addressing a minimum set of criteria established by federal law.
Pole attachment rate regulation would be expanded to include poles and attachments owned by municipalities or cooperatives.
All broadband service providers, whether wholesale or retail, have the right to access pole attachments, ducts, conduit and rights-of-way based on reasonable rates, terms and conditions.
Infrastructure access be provided within standard timelines established by the FCC, and that the FCC has the authority to award damages for non-compliance.
The FCC has the authority to compile and update a comprehensive database of physical infrastructure assets.

While these recommendations are not legally binding, and extensive rulemakings will be necessary to effectuate any such changes into law, they are extremely strong signals about future FCC policy choices about pole attachment regulation. We would also expect robust legal and political resistance by electric utilities to any such changes. We would be pleased to respond to any questions regarding this matter.