A Declaration of Independence: Pennsylvania to Regulate Pole Attachments

Pennsylvania will become the twenty-first state to certify to the Federal Communications Commission (FCC) that it regulates third-party attachments to electric utility and telephone poles. On August 29, 2019, the Pennsylvania Public Utility Commission (PPUC) voted 4-1 to exercise jurisdiction over pole attachments and to adopt, wholesale, the FCC's pole attachment rules, including the recently implemented one-touch make-ready and over-lashing regulations as well as the federal definitions of "pole attachment" and "telecommunications carrier."

Significantly, the PPUC's new rules extend to cable operators and telecommunications carriers regardless of whether the carriers hold a Pennsylvania certificate of public convenience. The PPUC's pole attachment rules, which do not extend to attachments made to poles owned by municipalities or cooperatives, will take effect upon publication in the Pennsylvania Bulletin.

PPUC Adopts FCC Rules with Focus on Expediting Dispute Resolution

In adopting the FCC's pole attachment regime, the PPUC explained that it would apply those rules and policies with greater attention to "Pennsylvania-specific pole attachment issues…" but that its primary rationale for asserting jurisdiction was to provide a forum for more timely resolution of pole attachment disputes.

The PPUC further explained that "its assertion of jurisdiction over pole attachments will assist in spurring investment in, and access to, physical infrastructure used to deliver essential broadband access service to end user customers by reducing the time and resources spent on disputes by resolving Pennsylvania-specific disputes in Pennsylvania as compared to the FCC."

Moving forward, the PPUC will automatically adopt future amendments to the FCC's pole attachment rules subject to certain safeguards, which include:

1. The creation of a Working Group to monitor FCC pole attachment regulations and to advise the PPUC on federal and state pole attachment matters;
2. A 60-day consideration period initiated by the PPUC to review FCC pole regulation amendments and to allow for public and stakeholder input before new FCC rules can become effective in Pennsylvania; and
3. The ability to deviate from FCC pole precedent in response to petitions or in adjudicatory proceedings.

In addition, the PPUC clarified that it will incorporate recommendations from the FCC's Broadband Deployment Advisory Committee into its pole attachment rules to the extent that they are adopted and made effective by the FCC.

PPUC Reserves Right to Tailor FCC Rules to Pennsylvania Needs

Although the PPUC created a process for reviewing any new FCC rules before they become law in Pennsylvania, the PPUC emphasized that the process "should not be construed as an invitation for Pennsylvania utilities and other interested parties to regularly rehash or reargue determinations of the FCC."

The PPUC will exercise discretion in interpreting FCC orders that promulgate or interpret FCC rules and Federal court decisions reviewing FCC orders and rules, and consider such orders and decisions as persuasive authority (but not binding precedent). Moreover, the PPUC reserves the right to initiate rulemaking proceedings and consider petitions from Pennsylvania entities regarding the modification of its pole attachment rules.

As one of the PPUC Commissioners noted, "the adjudications of pole attachment issues and complaints are inherently complex," and we anticipate that the pole owner utilities will seek to make it even more so. DWT will continue to monitor any developments in Pennsylvania as the PPUC embarks on this significant and challenging undertaking.