Oregon Adopts New Pole Attachment Rules
comprehensive set of pole attachment rules that will promote non-discriminatory access for communications companies, including wireless carriers, to utility-owned and controlled facilities—such as poles, ducts, conduits and rights-of-way—at just and reasonable rates, terms and conditions. (A copy of the Order is available here.) The new rules also amend and curtail pole attachment penalties (known as “sanctions”) that had been in effect since 2000. These rules represent the culmination of more than two years of collaborative efforts by Commission staff and stakeholders, including utilities and communications companies, and multiple rounds of comments and hearings before the Commission.
The Oregon Commission has exercised jurisdiction over pole attachment matters since 1979, when Oregon “certified” to the Federal Communications Commission (FCC), pursuant to the federal Pole Attachment Act, 47 U.S.C. § 224, that it intended to regulate in this area and thus preempted FCC regulation of pole attachments. While the Oregon Commission has had jurisdiction over pole attachments in the state for nearly 20 years, the rules that were initially adopted provided little guidance to pole owning utilities or communications companies seeking to attach to utility poles. As a result, particularly following the Telecommunications Act of 1996 when the number of companies seeking access to utility poles grew, utilities and attaching entities were often at odds and there were few rules to govern their relationship. In addition, the Commission adopted “sanctions” rules in 2000 that were intended to discourage communications companies from making unsafe or unpermitted attachments. These former rules allowed pole owning utilities to impose penalties in excess of $500 per pole making the pole attachment environment in Oregon contentious and generating several complaints at the Commission.
The new rules provide guidelines for terms and conditions to be used in pole attachment agreements, including installation practices, rental rates and other joint-use matters. The new rules also provide cure periods prior to the imposition of sanctions. Among the important conclusions in the Commission’s Order are the following:
- Wireless telecommunications carriers are covered under Oregon’s rules, although the Commission plans to institute a separate rulemaking addressing certain wireless-specific pole attachment issues;
- Transmission towers with any distribution lines are subject to mandatory access requirements and the new rules;
- The Commission rejected calls to adopt the FCC “telecom” rate formula for all attachments and adopted the FCC cable rate formula (with certain modifications required by Oregon statute) to govern calculation of pole attachment rates (including rates for telecommunications providers) in Oregon;
- Pole owners may not charge rent for equipment in unusable space (e.g., risers);
- Pole owners may be reimbursed for “actual engineering costs,” but may not impose flat fees for application processing and pre-construction surveys.
The Commission also adopted the federal “sign and sue” rule, which allows attaching entities to challenge existing contract provisions and the implementation of existing contracts under the new rules.
In addition to the conclusions announced in the Commission’s Order, the new rules also:
- Require pole owners to grant or deny a permit within 45 days and if the pole owner fails to do so, the attacher may being installation;
- Prohibit a pole owner from charging directly for periodic inspections, allowing pole owners to recover any such costs as part of the annual pole rental rate only;
- Require pole owners to ensure that inspection data is accurate prior to submitting it to an attacher;
- Prohibit a pole owner from terminating a contract and forcing the negotiation of a new contract;
- Require parties to negotiate pole attachment contracts in good faith.
Although the Order and rules only apply in Oregon, they could have persuasive effect in other jurisdictions that regulate pole attachments.
DWT represented communications attachers in the rulemaking.