Worth the Wait? After Thirty-Six Years, the Washington Utilities and Transportation Commission Takes Comprehensive Action on Pole Attachments

On October 21, 2015, the Washington Utilities and Transportation Commission (“WUTC”) adopted a comprehensive set of pole attachment rules (hereinafter “Pole Attachment Rules”), following a year-and-a-half-long rulemaking and 36 years after the state legislature authorized the WUTC to make such rules. The Pole Attachment Rules apply to poles owned by the State’s investor-owned electric and telephone utilities (not to cooperatives or municipalities) and are modeled largely after the Federal Communications Commission’s (“FCC”) pole attachment rules. In fact, the Pole Attachment Rules specify that the WUTC “will consider [FCC] orders promulgating and interpreting its pole attachment rules and federal court decisions reviewing those rules and interpretations as persuasive authority. . . .” WAC 480-54-101(2).

While the FCC regulates pole attachment in most states, Section 47 U.S.C. § 224(c) of the federal Pole Attachment Act [47 U.S.C. §224, et. seq.] permits states to opt-out of the federal pole attachment regulatory regime. But, a state is not “considered to regulate” pole attachments unless it “ma[k]es effective rules and regulations implementing the State’s regulatory authority over pole attachments,” and acts on individual complaints no later than 360 days after filing.  47 U.S.C. §224(c)(3). In 1979, the Washington State Legislature implemented a statute (chapter 80.54 RCW) authorizing the WUTC to regulate pole attachments, but the WUTC had never adopted the necessary rules until now. The Pole Attachment Rules therefore “implement[] chapter 80.54. RCW,” (WAC 480-54-010 (1)), and perfect the WUTC’s self-regulation certification.

As noted above, the Pole Attachment Rules accord with many important FCC rules and regulations, although there are some important distinctions.

• First and foremost, the WUTC adopted the FCC cable formula to apply to all attachments. The WUTC did not adopt the FCC’s “telecom” rate formula. Therefore, the same rate formula will apply to all attachers, including cable operators, CLECs, ILECs, wireless attachers and broadband companies, alike.
• Second, like the FCC rules, the Pole Attachment Rules include access timeframes that govern the pole attachment permit process from application submittal through make-ready performance and permit denial of access only “on a nondiscriminatory basis where there is insufficient capacity or for reasons of safety, reliability, and generally applicable engineering principles.” But, unlike the federal rules, the Washington Pole Attachment Rules expressly forbid a pole owner from denying access “if the [attacher] is willing to compensate the owner for the costs to replace the existing pole with a taller pole and otherwise undertake make-ready work to increase the capacity of the pole to accommodate an additional attachment including, but not limited to, using space-and-cost-saving attachment techniques, such as boxing . . . or bracketing . . . to the extent that the owner uses, or allows occupants to use, such attachment techniques in the communications space. . . .”  WAC 480-54-030(1).  Although the FCC also forbids pole owners from denying access in a discriminatory manner, the FCC’s rules are less explicit.
• Third, the Pole Attachment Rules allow attachers to overlash without submitting a permit, but require an overlasher to provide 15 business days’ notice to the pole owner. A pole owner may refuse to allow the overlashing within 10 business days if “the overlashing would have a significant adverse impact on the poles or other occupants’ attachments,” but must allow the overlashing if the adverse impact can be resolved through make-ready.  Id. 480-54-030(11).
• Fourth, following FCC rules on cost causation, the WUTC’s rules require all parties, including the pole owner, to pay for modification costs from which they benefit. Therefore, attachers with compliant attachments cannot be forced to pay to rearrange their attachments or pay for pole replacements if such work is required solely for the benefit of another party, including the pole owner. See WAC 480-54-050(1)-(2); see also General Order R-582, ¶¶ 28-29.
• Fifth, the WUTC also adopted the FCC’s “sign and sue” rule. But, attachers wishing to take advantage of the rule must bring a complaint within six months of the agreement’s execution OR demonstrate that it was “unaware of the other party’s interpretation of the rate, term or condition when the agreement was executed.” WAC 480-54-070.

The Pole Attachment Rules apply equally to wireless attachments to utility poles, with some variations for wireless attachments above the communications space (e.g., pole tops). For example, owners have a 90 day instead of 60 day timeframe for completing make-ready work for attachments above the communications space.  WAC 480-54-030(6)(b)(ii). In addition, unlike attachments in the communications space, the rules do not expressly permit wireless attachers to hire their own contractors to complete make-ready work for attachments above the communications space when the pole-owner is unable to timely complete the make-ready work. Compare WAC 480-54-030(6)(a) with WAC 480-54-030(6)(b).

In this way, the WUTC’s rules comport with FCC rules.While the WUTC’s rules could be interpreted to apply to attachments to facilities owned by wireless carriers (e.g., cell towers), in its adoption order, the WUTC clarified that it “does not intend to assert jurisdiction over CMRS providers by promulgating these rules.” General Order R-582, ¶ 18. In doing so, the WUTC stated that it has “no desire to challenge [the FCC’s] supremacy in this area” and pointed out that the rules “were not developed with access to CMRS facilities in mind.” Id. Nevertheless, the WUTC decided to “leave for another day and specific factual circumstances the issue of whether these rules could or should be construed to require access to wireless carrier facilities.” Id. The rules also include the requisite time frame for taking actions on complaints (180 days, but the WUTC “may extend this deadline for good cause,” WAC 480-54-070(1)), and provide that “any party [in a complaint proceeding] advocating rates, terms and conditions that vary from the rules . . . bears the burden to prove those rates, terms, or conditions are fair, just, reasonable and sufficient.” Id. 480-54-030(2).

In order to give the State’s utilities an opportunity to modify their processes and prepare to comply with the Pole Attachment Rules, the rules are not effective until January 1, 2016.