FCC Clarifies Pole Attachment Rules Related to Access Denial and Agreement Terms and Conditions

On July 29, 2020, the Federal Communications Commission's (FCC or Commission) Wireline Competition Bureau (WCB) released a Declaratory Ruling clarifying certain aspects of its rules governing the deployment of communications equipment on utility poles subject to FCC jurisdiction. The Declaratory Ruling was issued in response to a CTIA petition and provides clarity relating to important issues raised in a 2018 Commission order eliminating barriers to broadband deployment and streamlining the process for attaching new communications equipment to utility poles (the 2018 Wireline Infrastructure Order).

In particular, the Declaratory Ruling, which became effective upon its release, clarifies that:

• (1) the imposition of a "blanket ban" by a utility of attachments to any portion of a utility pole is inconsistent with the federal requirement that a "denial of access … be specific" to a particular request; and
• (2) while utilities and attachers have the flexibility to negotiate terms in their pole attachment agreements that differ from the Commission's rules, a utility cannot use its significant negotiating leverage to require an attacher to give up rights to which the attacher is entitled without the attacher obtaining a corresponding benefit.

WCB did not resolve a third aspect of CTIA's petition that seeks a declaration that the term "pole" includes light poles; that issue remains pending.

Background

Through the 2018 Wireline Infrastructure Order, the Commission fundamentally shifted the federal pole attachment framework, adopting new rules permitting some attachers to perform the work necessary to prepare a pole for a new attachment and reaffirming that utilities must provide a written explanation for denying pole access that is specific to the particular pole and attachment at issue. Following that Order's adoption, CTIA filed a Petition for Declaratory Ruling asking the Commission to clarify the three points raised above.

In response to the Commission's request for comments on CTIA's Petition, numerous parties submitted evidence showing that utilities were imposing blanket bans on the attachment of particular equipment to utility poles and/or attachment to particular sectors of a pole without a clear safety or engineering basis for the utility's decision with respect to the specific poles at issue. Commenters also complained that utilities continue to leverage their monopoly control over pole access to impose terms and conditions in pole agreements that are less favorable than what the FCC's rules generally provide.

Prohibition of "Blanket Bans" on Pole Access

In its Declaratory Ruling, WCB clarifies that Section 1.1403(b) of the Commission's pole attachment rules requires denials of pole access to be specific, include relevant evidence and information supporting the denial, and explain how such evidence and information support a denial of access for reasons of lack of capacity, safety, reliability, or engineering standards. Accordingly, and given the Commission's past statements prohibiting pole access denial on a blanket basis, WCB clarifies that "utilities may not impose categorical bans on pole access that do not require the utility to provide a reason for denying access specific to the pole or attachment in question." In this regard, WCB ruled that a utility cannot simply ban all attachments in the "unusable space" on its poles.

In making this clarification, WCB rejected utility arguments that CTIA's request to prohibit blanket bans will interfere with the enforcement of reasonable engineering and safety standards. WCB explained that utilities are still permitted to deny pole access so long as those denials are particular to a specific pole or pole section and are supported by corresponding reasons of lack of capacity, safety, reliability, or engineering standards. WCB also rejected utilities' assertions that the Commission's clarification would somehow eliminate the utilities' right to adopt construction standards or their use of such standards to deny pole access. As WCB explained, utilities still have discretion to adopt such standards; however, "mere citation or reference to a construction standard to justify a denial of access is insufficient to comply with [the Commission's pole attachment rules]."

Utilities Must Provide Corresponding Benefits to Attachers in Pole Agreement Negotiations Where Concessions Compromise Pole Attachment Rights 

The Declaratory Ruling denies CTIA's request for an outright prohibition on pole attachment agreement terms that conflict with the Commission's pole attachment rules. WCB reaffirms past Commission decisions authorizing attachers and utilities to negotiate "superior solutions" in pole attachment agreements, even if such terms compromise certain attacher rights under the Commission's rules. However, WCB acknowledges the unequal bargaining power wielded by pole owners over attachers in such negotiations and declares that if an attacher negotiates away certain federal pole attachment rights to the benefit of the utility, the utility must in return provide the attacher with a corresponding benefit. Significantly, "the utility has the burden to show that the exchange accorded a significant benefit to the attacher where a utility claims that a rule deviation that benefits the utility was part of a negotiated exchange."

CTIA also requested that the Commission declare that the term "pole" includes "light poles" so as to require non-discriminatory access on just and reasonable rates, terms, and conditions. In support, CTIA argued that "utilities continue to deny access to light poles and impede deployment," oftentimes charging a premium for access or denying access altogether. WCB noted that it was not addressing this aspect of CTIA's petition in its Declaratory Ruling, leaving it for future resolution at a later date.

This article was originally featured as a communications advisory on DWT.com on August 03, 2020. Our editors have chosen to feature this article here for its coinciding subject matter.