Breaking News

Federal Court Holds There Exists No Federal Private Right of Action For Rate Disputes Under the Pole Act

March 25 , 2010
printable version

The U.S. District Court for the Eastern District of Virginia has ruled in Virginia Electric and Power Company v. Comcast of Virginia, Inc. that neither Section 224 of the Communications Act (the “Pole Act”) nor the related rules of the FCC pertaining to pole attachments create a private right of action in federal court for pole attachment rate disputes.
A utility pole owner, Virginia Electric and Power Company, sued a cable operator attacher, Comcast, in federal court to collect rent calculated under the FCC’s telecommunications formula for every pole to which Comcast is attached in Virginia. Comcast, which provides interconnected VoIP telephony services over its cable systems in Virginia, had been paying Dominion the lower cable formula rate for its attachments. As part of its claim for underpayment of attachment rent, Dominion alleged a federal violation of the Pole Act and related FCC rules.
In granting Comcast’s motion to dismiss, the court held that there is no private right of action under the Pole Act or FCC rules for attachment rate disputes. This means that disputes on these issues are to be resolved through the FCC’s complaint process, or, where appropriate, through state breach of contract claims. The court also held that Dominion’s claims that Comcast owed the telecommunications pole rate for 100 percent of its attachments to Dominion’s poles, and that Comcast failed to notify Dominion that it was providing telecommunications services, were not actionable under separate common carrier liability sections of the Communications Act. Please note that the court did not rule on the proper regulatory classification of Comcast’s provision of interconnected VoIP service or on the application of the FCC’s telecommunications pole attachments rate to attachments providing those services.

We would be pleased to respond to any questions regarding this matter.