Seven sets of initial comments were filed yesterday in response to a December 20, 2013 Public Notice requesting comment on a June 2013 Petition filed by Union Electric Company d/b/a Ameren Missouri (Ameren). As summarized in our previous update, 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.

Only one set of comments were filed on behalf of pole owners. In joint comments, Southern Company, Duke Energy and American Electric Power expressed support for the Petition, arguing that VoIP is “functionally indistinguishable from traditional telephone service.” COMPTEL agreed with the pole owners and asked the FCC to declare that “managed VoIP service is a telecommunications service.” 

All other commenters opposed the Petition. The National Cable & Telecommunications Association argued that granting the Petition would reverse important FCC policies promoting broadband deployment and competition through lower pole attachment fees, and that instead, the FCC should affirmatively rule that the cable rate formula applies to comingled cable VoIP service attachments.  NCTA explained that there is no basis or need to classify VoIP at this time, consistent with the FCC’s longstanding policy. Because the telecom rate applies to telecommunications service attachments and VoIP is an unclassified service, the FCC has ample authority under Section 224(b) to apply the cable rate to unclassified cable VoIP attachments.

The American Cable Association argued that the issue of VoIP classification is not properly presented in the Petition and that a ruling that VoIP constitutes telecommunications services for purposes of pole attachment rates would be contrary to FCC policy prompting broadband deployment. Cable One, which is involved in litigation with Ameren in the U.S. District Court for the Eastern District of Missouri, argued that under Section 224 there are only two applicable rates for pole attachments – the telecom rate and the cable rate. Since the telecom rate only applies to telecommunications carriers or providers of telecom services, that rate cannot apply to unclassified VoIP service. Consequently, the FCC should deny Ameren’s request and rule that the cable rate applies. There is no need to make any further VoIP classification decision to resolve the issue for the underlying litigation.

AT&T commented that under existing law, the FCC need not classify Cable One’s VoIP service in order to terminate the controversy between Cable One and Ameren. Rather, AT&T suggested that the Commission should advise the court that the presence of a comingled service such as VoIP does not transform Cable One’s cable television system attachments into pole attachments used by a telecommunications carrier or obligate Cable One to pay the telecom rate. 

Finally, Mediacom accused Ameren of employing a “sly litigation strategy aimed at circumventing the Commission’s policy … to keep pole attachment rental fees down and to do so in a technology neutral way.” Like AT&T, Mediacom asked the Commission to confirm that attachments carrying comingled VoIP services offered by cable operators should remain subject only to the cable formula. 

Reply comments are due by February 5, 2014.