Yesterday, the Federal Communications Commission (“FCC”) released a public notice seeking comment on a Petition for Declaratory Ruling that was filed by Mediacom Communications Corporation (“Mediacom”) on February 19, 2014.  Mediacom is requesting the FCC “issue a declaratory ruling clarifying that an indemnification clause in a pole attachment agreement between a cable operator attacher and [a] pole owner, to the extent the clause imposes asymmetric and non-reciprocal indemnification liability for negligence on the [attacher], is not a ‘just and reasonable’ term and condition of attachment,” under the Pole Attachment Act, 47 U.S.C. § 224.

Mediacom is involved in a state tort case in Iowa where a Mediacom employee died as a result of a rotted pole, according to an investigation by the deceased employee’s counsel.  The indemnity clause in Mediacom’s pole attachment agreement with the pole owner, Interstate Power and Light Company/Wisconsin Power and Light (“IPL”) holds Mediacom liable for IPL’s negligence.  Therefore, Mediacom wants the FCC to clarify that indemnity clauses such as the one at issue are unreasonable and unenforceable so Mediacom is not forced to indemnify IPL if IPL’s own negligence is determined to be the cause of death.

As Mediacom points out in its Petition, the FCC has already addressed the issue of indemnity clauses in pole attachment agreements and found that "reciprocal indemnification provisions[s] simply ... result in each party assuming responsibility for losses occasioned by its own conduct,” and there is no "rational basis" for a non-reciprocal indemnity clause in a pole attachment agreement.  Cable Tele’n Ass’n of Georgia v. Georgia Power Co., 18 FCC Rcd 16333, ¶ 31 (Enf. Bur. 2003), recon. denied, 18 FCC Rcd 222871 (Enf. Bur. 2003).  But, as Mediacom also indicates, because “pole owners often misstate the holding of Georgia Power,” Mediacom asks the FCC to “clearly reiterate that negligence, gross negligence and willful misconduct are all forms of misconduct for which each party to a pole attachment agreement should be held wholly responsible for its own conduct.”

Comments are due by May 8, 2014 and reply comments are due on May 23, 2014.  Please contact DWT if you have any questions regarding this post or if you are interested in filing comments.