Electric Utilities Seek SCOTUS Review of DC Circuit February 2013 Pole Decision Granting ILECs Pole Attachment Rights

On May 24, 2013, five electric utilities filed a petition for certiorari in the U.S. Supreme Court seeking limited review of the D.C. Circuit’s February 2013 pole attachment decision that, among other things, upheld the FCC’s 2011 Pole Order giving Incumbent Local Exchange Carriers (ILECs) rights to “just and reasonable” rates, terms, and conditions for their attachments to electric utility poles (For more information on this order, visit our DWT advisory).

The D.C. Circuit decision also upheld the FCC’s lowering of telecommunications pole attachment rates and extending the refund period available to attachers who have been overcharged. The utilities’ petition only seeks review of the holding granting pole attachment rights to the ILECs. Accordingly, all other holdings in the decision—pertaining to pole attachment rates and refunds—are final. The petition cites and relies on the Supreme Court’s recent City of Arlington decision on the scope of the FCC’s jurisdiction.

Responses to the cert petition are due June 28—pushing any decision to grant or deny cert to the Court’s next term, which commences in October.