On December 20, 2013, the FCC Wireline Competition Bureau released a Public Notice requesting comment on a June 2013 Petition filed by Union Electric Company d/b/a Ameren Missouri (Ameren). The Petition asks the FCC to issue a declaratory ruling that, under Section 224 of the Communications Act, VoIP service offered using a cable operator’s pole attachments is a “telecommunications service” for purposes of determining pole attachment rental fees.
Ameren’s Petition was prompted by a May 2013 order by the U.S. District Court for the Eastern District of Missouri, which is adjudicating a contract dispute between Ameren and CableOne, a cable operator that also provides VoIP service over its cable facilities. The Court had previously issued a stay in that case under the primary jurisdiction doctrine, ruling that it cannot resolve the parties’ contract dispute absent a determination by the FCC of the issues raised in Ameren’s complaint, including the VoIP classification question.
A separate proceeding dealing with the VoIP classification question has been pending at the FCC since 2009. When the Commission issued its April 2011 decision moving the telecommunications rate to the cable rate, it seemed the need for a classification was obviated at least with respect to pole rental rates. However, given that pole owners are allowed under the new formula to rebut the attaching entity presumptions, the telecom pole rental rate could still possibly exceed the cable pole rental rate by as much as 50%.
Comments must be filed by January 21, 2014 and reply comments are due by February 5, 2014.