USTA Seeks New Rules Granting ILECs Federal Pole Attachment Protections
On October 11, 2005, the United States Telecom Association (“USTA”) petitioned the FCC to initiate a Notice of Proposed Rulemaking (“NPRM”) to amend its pole attachment rules to afford ILECs protection from unreasonable pole attachment rates, terms and conditions. Yesterday the Commission formally placed USTA’s petition on Public Notice, seeking comments on whether or not the Commission should undertake the NPRM requested by USTA.Comments are due December 2.
By way of background, prior to the Telecommunications Act of 1996 (the “1996 Act”), pole attachment regulation under Section 224 addressed only rates, terms and conditions for attachments by cable systems. In order to advance wireline telecommunications services competition, Congress amended Section 224 in 1996 to protect competitive telecommunications carriers from unjust and unreasonable rates, terms, and conditions of attachment and to grant cable operators and telecommunications carriers a mandatory right of access to utility poles— generally those owned by ILECs and electric utilities. Congress excluded ILECs from the definition of telecommunications carriers that were protected by Section 224. In its rules, the FCC has consistently interpreted Section 224 as excluding ILECs from the protections against both the denial of access and the imposition of unreasonable rates, terms, and conditions.
USTA asserts that “energy utilities” have imposed pole attachment rate increases of 100 to 500 percent on ILECs As a result, the Petition asserts, ILECs’ customers suffer higher prices and the ILECs are competitively harmed. USTA’s Petition asks the FCC to change its rules to expressly include ILECs and their attachments within Section 224’s rate, terms and conditions protections, relying on the policy favoring competition as well as some differences in the language in subsections of 224. Specifically, USTA asserts that the FCC’s rules take an overly narrow interpretation of Section 224 because only the mandatory access provision of Section 224(f) uses the term “telecommunications carrier,” while provisions addressing rates, terms, and conditions use the term “providers of telecommunications service.” Accordingly, USTA contends that the FCC should amend its rules to permit ILECs to file complaints against utilities for imposing unreasonable rates, terms, and conditions and to provide that the FCC’s “telecom” rate formula in Section 224(e) applies to both ILEC and CLEC attachments in the same manner.
In support of its request, USTA asserts that amending the pole attachment rules will serve the policy goals of the 1996 Act by promoting competitively neutral competition. Granting USTA complete relief may be problematic, however, because the rate provisions in Section 224(e)(1), which instruct the FCC to adopt rate regulations, uses the term “telecommunications carrier.” As explained above, this term excludes the ILECs. Accordingly, it is no surprise that the ILECs have also sought relief in Congress and successfully lobbied for the introduction of the Ensign Bill which, among other things, would expressly amend Section 224 to give the ILECs essentially the same relief sought in the USTA petition.1 This petition may also present an opportunity for other attaching entities, including cable operators, to seek resolution or clarification of other pole-related issues.
We understand that the Petition has been assigned to the FCC’s Wireline Competition Bureau and is part of a shift of responsibility for pole attachment policy issues away from the Media Bureau. If you have any questions, would like a copy of the Petition, to discuss the implications of the Petition, or participate in comments, please contact us.
1 The “Broadband Investment and Consumer Choice” Bill (S.1504), introduced by Senator John Ensign (R-NV), would amend Section 224 to delete the ILEC exclusion and thus bring ILEC attachments within the protections afforded cable and CLECs for rates, terms and conditions as well as access for attachments to electric utility poles.