Missouri Prohibits Municipal Pole Owners From Exceeding FCC Cable Pole Attachment Rate Formula

On March 20, 2014, Governor Jay Nixon signed into law SB 653. The law requires that any pole attachment rate, term or condition demanded by a “municipal-utility” or “municipality” be nondiscriminatory, just and reasonable. The law applies to pole attachments made by “communications-related service providers,” but excludes wireless antennas and any attachment by a wireless communications provider.

Under the new law, the annual pole attachment rent must be charged on a “per pole” basis and is capped at the Federal Communications Commission’s (“FCC”) cable formula, although the pole owner “may be authorized to exceed the rate of return component of the [FCC] formula . . if necessary to comply with Article X of the Missouri Constitution.” The law also prohibits a municipal pole owner from denying access to its poles, except when there is “insufficient capacity or for reasons of safety and reliability and if the attaching entity will not resolve the issue.”  But, the law allows a municipal pole owner to revoke a pole attachment permit and require the removal of an attachment in the event of a “substantial [uncured] breach,” as such term is specifically defined within the law.  Any pole attachment dispute under the new law will be heard in state courts on an expedited basis.

SB 653 is the replacement law for a similar bill, HB 345, enjoined last August on state constitutional grounds, pursuant to a law suit filed by several Missouri municipalities, as we previously reported. SB 653, along with the passage of several related telecommunications bills, is expected to moot the existing law suit.

SB 653 does not supersede the provisions of pole attachment agreements existing prior to August 28, 2014, which is the effective date of the new law.