Yesterday, the FCC issued its first decision in a pole attachment complaint proceeding concerning the rights of wireless carriers to access utility poles and support structures at just and reasonable rates and terms. The FCC’s ruling comes more than a year after the Supreme Court affirmed that the FCC has jurisdiction under the federal Pole Attachment Act to regulate wireless carriers’ attachments to utility poles and facilities in NCTA v. Gulf Power Co., 534 U.S. 327 (2002) (“Gulf Power”).
In April 1997, wireless carrier, Omnipoint Corporation (hereinafter “Omnipoint,” a PCS company that has since become part of T-Mobile USA), filed a pole attachment complaint at the FCC seeking access to utility poles owned by PECO Energy Company (“PECO”). The Commission found that PECO did not engage in fruitful negotiations for access to its support structures because it refused to provide Omnipoint with the information necessary to evaluate whether the attachment rates being charged by PECO were just and reasonable. Also, while the FCC had concluded in a previous rulemaking proceeding that its jurisdiction under the Pole Attachment Act extended to attachments by wireless telecommunications carriers, and that such carriers were thus entitled to federal pole protections, in yesterday’s decision, the FCC noted that this jurisdictional question had been resolved conclusively in the Gulf Power case.
The FCC reaffirmed that utility pole owners must grant access to their poles for wireless attachments at just and reasonable rates, terms and conditions. Specifically, the FCC rejected PECO’s circular and strained procedural and jurisdictional defenses, finding that a utility could not defeat Omnipoint’s access claims simply because (a) Omnipoint had not yet gained access to PECO facilities, or (b) because Omnipoint did not make a counteroffer to PECO’s proposed rate. The Commission found that in order for an attacher to have the information necessary to determine whether the utility’s proposed rates are just and reasonable, and to otherwise engage in reasonable access negotiations under Section 224, it must have access to a utility’s support structure cost data. The FCC also ruled that PECO was required to provide access to facilities that the utility might try to characterize as “transmission” facilities if such facilities were part of the utility’s local distribution system.
This decision may prove to be beneficial to wireless carriers seeking to utilize utility pole infrastructure to expand and bolster the reach of their networks, or to roll out new wireless telecommunications services. While we anticipate that yesterday’s decision may set the stage for future debates concerning the pricing of utility support structures (which will depend on a number of factors such as the size, placement and location of wireless telecommunications attachments), the decision nevertheless reaffirms that utility pole owners are required to make their support structures available to wireless carriers at just and reasonable rates, terms and conditions, and that the Commission has the jurisdiction necessary to address disputes that may arise.
If you would like a more detailed assessment of any component of yesterday’s decision and what it means for your company’s operations, please do not hesitate to call us.