On July 30, 2014, the Public Utilities Commission of Ohio (“PUCO”) issued its Finding and Order, “In the Matter of the Adoption of Chapter 4901:1-3, Ohio Administrative Code, Concerning Access to Poles”, Ducts, Conduits, and Rights-of-Way by Public Utilities, pursuant to which PUCO adopted a comprehensive set of rules governing access to public utility poles, conduits and rights-of-way (“Ohio Pole Attachment Rules”).
The Ohio Pole Attachment Rules generally harmonize with the Federal Communications Commission’s (“FCC”) pole attachment rules found at 47 C.F.R. § 1.1401, et seq. For instance, the Ohio Pole Attachment Rules (like the federal rules) provide that a utility must provide nondiscriminatory access to any pole, conduit or right-of-way owned or controlled by it, on just and reasonable rates, terms and conditions, and may only deny access where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes. The Ohio Pole Attachment Rules also establish an access timeline, similar to the FCC’s new (since 2011) access timeline (with slight variations), which sets maximum timeframes for application turn around, and the performance of pre-construction surveys and make-ready.
Rather than adopt a dual-rate formula structure, like the FCC’s (which has a “cable” and “telecom” rate formula, as required by the federal Pole Attachment Act, 47 U.S.C. § 224), the Ohio Pole Attachment Order adopts a single, unified pole attachment rate formula based on the FCC’s cable rate formula. In adopting a single rate formula, the PUCO noted “that the cost incurred by the pole owner to provide attachment space is not affected by the services being provided by the attaching entity.” The PUCO further opined that the FCC’s cable rate formula “has been deemed compensatory by the courts.” The PUCO rejected utility efforts to push for a formula that would have yielded rates even higher than the FCC’s “old” telecom formula, which DWT discussed when the FCC issued its “new” telecom formula. The Ohio Pole Attachment Rules also significantly advance wireless attachment rights. Specifically, the Rules expressly extend access rights to wireless attachments, including those on pole tops and in the communications space. They also impose access timelines for wireless attachments that are only slightly longer than those for wired attachments, similar to FCC rules.
In sum, by modeling their new Pole Attachment Rules on existing FCC rules, the PUCO has helped to pave the way for easier, less costly build-out of communications infrastructure in the United States.