FCC's Pole Attachment Order Addresses Some Issues, Defers Most Contentious Items for Future Decision

Today the FCC voted to adopt an Order and Further Notice of Proposed Rulemaking (FNPRM) on changes to its pole attachment rules, adding yet another chapter to the FCC's pole attachment saga.  Described by FCC Chairman Genachowski as "the blood and guts of broadband deployment," the pole attachment item was notable both for the level of technical detail it addresses, and for the decision to request additional comments on topics that have previously been briefed at considerable length.What follows is a high level summary that consists mostly of information announced at today's open meeting and the accompanying press release.  The full Order and FNPRM have now been released, and DWT will post a summary of that text shortly.In the meantime, highlights from today's Order include:• The Commission holding that the process of make-ready utility pole construction may not be subject to untimely delay under the statute, and• The Commission addressing the practice of "opposite side construction," also known as boxing the pole, where communications providers place attachments on both sides of a utility pole.In addition, highlights from the FNPRM include:• The FCC proposing to establish timelines for access for both cable wires and wireless antenna facilities, drawing on experiences of the New York and Vermont PSCs,• The FCC specifically asking for detailed comments on the use of outside contractors to expedite make-ready construction,• The Commission proposing to change the formal FCC complaint resolution process to eliminate disincentives for private parties to seek FCC resolution and to expand the FCC’s authority to act,• The FCC asking for comments on various rate proposals, including a new FCC devised formula that would amend the telecom rate by providing a rate range consisting of an “upper bound” rate (the existing telecom formula), and a “lower bound” rate that would exclude pole capital costs (but not operational costs) from the rate calculation. Under this proposal, a telecom attacher would pay the higher of the “lower bound telecom rate” or the current cable rate, which the FCC expects would result in payment of the cable rate in most cases, and• Rather than proposing specific pole rent rules for ILECs, the FCC requesting additional comments on several issues including whether ILECs are legally entitled to regulated pole rates, and whether the benefits ILECs enjoy under joint use contracts with electric utilities justify higher pole rents compared to cable and telecommunications attachers.Among the many other items that appear to be addressed in the FNPRM are: “sign and sue,” unauthorized attachments, and additional remedies to resolve pole attachment complaints.Chairman Genachowski strongly encouraged all parties to be active participants in the upcoming rulemaking proceeding addressing the FNPRM issues.  (Comment dates will be set upon publication of the FNPRM in the Federal Register, we will let you know when that happens.)  Commissioner Baker also asked interested parties to especially address: (1) how the FCC’s proposals to harmonize different pole attachment rates squares with the statutory framework; and (2) how various pole access proposals accommodate electrical safety issues. Stay tuned for a more detailed summary of today’s Pole Attachment Order and FNPRM.  In the meantime, if you have any questions, please contact Chris Fedeli.