Reverse Preemption Round-Up: Two States Adopt Rulings on Pole Attachment Matters

State regulators in two states that have certified to the Federal Communications Commission ("FCC") that they regulate pole attachments recently released orders resolving important pole attachment and broadband deployment issues.

In Pennsylvania, the Pennsylvania Public Utility Commission ("PUC") entered an Order on October 8, 2024, adopting into Pennsylvania law the FCC's December 15, 2023, amendments to federal pole attachment regulations as amendments to the PUC's own pole attachment regulations to support and accelerate broadband deployment.

In Connecticut, the Public Utilities Regulatory Authority ("PURA") entered a Final Order on October 23, 2024, declining to vacate its One-Touch Make Ready and Single Visit Transfer Orders of 2022, which had the effect of staving off an effort by a labor union to reverse steps taken by PURA in recent years to accelerate broadband deployment.

Pennsylvania

In 2020, the Pennsylvania PUC asserted jurisdiction over attachments to investor-owned electric and telephone utility poles, ducts, conduits, and rights-of way ("Poles"), replacing the FCC as the state's regulator of rates, terms, and conditions of access to and use of such Poles. In asserting jurisdiction over pole attachments, the PUC adopted all of the FCC's then-existing pole attachment regulations.  Further, the PUC stated that subsequent amendments by the FCC would automatically take effect in Pennsylvania 60 days after the effective date of the federal changes unless otherwise provided by the PUC. 

In 2023, the FCC adopted two new pole attachment regulations: (1) one mandating that utilities provide cyclical pole inspection reports to attachers upon request; and (2) another enhancing dispute resolution procedures for pole attachments, prioritizing and expediting the resolution of pole attachment disputes that may impede broadband deployment by coordinating review through a rapid response team made up of experienced staff. (Read our previous post regarding the FCC's December 15, 2023, Order, including these two measures.) Thereafter, the PUC paused the automatic incorporation of the FCC's new rules and accepted comments from various stakeholders on whether the FCC's amendments should become effective in Pennsylvania. Some commenters opposed the incorporation of the FCC's regulatory changes.

After reviewing the comments from various stakeholders, the PUC ultimately adopted the FCC's new rules into Pennsylvania law without modification. With respect to the regulation mandating that utilities provide cyclical pole inspection reports to attachers, the PUC concluded, among other things, that the FCC's regulation provides necessary transparency, aligns with other federal and state rules, and is widely supported by stakeholders in the telecommunications industry. As for the FCC's establishment of a rapid response team concentrating on pole attachment disputes, the PUC found that the FCC's approach will streamline the resolution of pole attachment disputes, support necessary deployment of broadband, and accommodate Pennsylvania's current and future broadband deployment needs, especially in light of federal subsidies for broadband deployment. The PUC will consider an implementation order within 45 days (November 24) that "will address a Commission-specific [Rapid Broadband Assessment Team] that fits the Commission's internal staffing and structures, will address any conflicts between parties regarding the application of accelerated litigation schedules, and will address how the Commission's existing mediation processes may be used to resolve applicable pole attachment disputes."

The PUC's new rules became effective on October 9, 2024.

Connecticut

Like Pennsylvania, Connecticut also asserted jurisdiction over the rates, terms, and conditions of access to and use of utility poles, ducts, conduits, and rights-of-way of regulated public service companies. In 2022, PURA adopted decisions allowing new attachers to gain accelerated access to utility poles through OTMR procedures and also allowing existing attachers to ameliorate double pole conditions by utilizing single visit transfers from existing to adjacent replacement poles. In an attempt to reverse both decisions, the Communications Workers of American Local 1298 ("CWA") filed a petition for a declaratory ruling with PURA requesting that it vacate both prior decisions, i.e., the One-Touch Make-Ready ("OTMR") and the Single Visit Transfer ("SVT") decisions, as well as actions of PURA's Policy Working Group. Specifically, the CWA, which represents approximately 1,400 telecommunications workers in Connecticut, claimed that PURA's decisions and actions improperly mandated that telecommunications companies "use third-party, non-union contractors for bargaining unit work," without providing notice or negotiating with the CWA. Further, CWA claimed that PURA exceeded its jurisdiction in violation of General Statutes § 16-42 by interfering with collective bargaining agreements between public service companies and their employees, among other things.

In its final decision, PURA ruled that General Statutes § 16-42 is not applicable to the specific circumstances presented by the CWA and concluded that a petition for declaratory ruling was not the correct avenue for seeking relief for CWA's request. Indeed, CWA's petition was seen as an untimely appeal of the OTMR and SVT Decisions, and PURA determined that allowing the CWA to obtain a declaratory ruling "would upend the administrative appeal process." Further, PURA explained that the only question upon which it could opine was whether General Statutes § 16-42 applies to limit the actions of the Policy Working Group. PURA interpreted General Statutes § 16-42 to require the "actual interference of a contract" by identifying "specific provisions of its labor agreement that could not be performed" because of PURA's actions and ultimately held that the CWA did not demonstrate that the actions of the Policy Working Group constituted unlawful interference with the CWA's collective bargaining agreements. PURA only addressed the applicability of General Statutes §16-42 because it did not have jurisdiction to opine on the other issues (such as the National Labor Relations Act) that CWA raised.

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Davis Wright Tremaine has significant experience in the application of the federal, state, and local laws governing the deployment and operation of communications infrastructure including in Pennsylvania and Connecticut. Please let us know if you would like our assistance in gaining a better understanding of your rights in seeking access to infrastructure in either state or elsewhere.