FCC, Backers Ask 8th Circuit to Uphold Pole-Attachment Order to Avoid Circuit Split
The FCC and supporters defended a 2015 pole-attachment order putting new downward pressure on rates that is being challenged in court by electric power companies, which own poles. In a joint reply brief to the 8th U.S. Circuit Court of…
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Appeals posted Tuesday, the FCC/DOJ said the commission has "broad authority" to regulate pole-attachment rates under Section 224(b) of the Communications Act (Ameren Corp., et al., v. FCC, No. 16-1683). They said that mandate was affirmed when the D.C. Circuit in 2013 upheld a 2011 FCC order that aimed to drive telecom rates down to lower cable rate levels in American Electric Power, which said the commission used its discretion reasonably to eliminate market distortions. After finding the rules weren't working as intended, the FCC in November adjusted cost allocators to bring the telecom and cable rates into closer parity at the lower levels (see 1511240071). "The rules, as amended, share the same structure and the same purpose as the 2011 rules. Accordingly, they are no less lawful than the rules at issue in American Electric Power, and this Court should follow the D.C. Circuit’s reasoning in that case to avoid a circuit split," said the FCC/DOJ, requesting an oral argument. Intervenors USTelecom plus NCTA, Incompas and Level 3 filed briefs backing the FCC actions (here and here in Pacer). The order "encourages broadband deployment, narrows the unjustified discrepancy that existed between the 'just and reasonable' rates that may be charged" competitors, and continues to fully compensate pole owners, USTelecom said. Both intervenor briefs said oral argument isn't necessary. "This challenge merely repackages the prior challenge rejected by the D.C. Circuit," USTelecom said. In their May brief (in Pacer), the power companies also said oral argument isn't necessary, "because the issues and relevant authority are clear." The commission's "conflation of the two cost formulas violates congressional intent and the canon against surplusage," said Ameren, American Electric Power Service, CenterPoint Energy Houston Electric and Dominion Virginia Power. "The FCC's definition of 'cost' is also arbitrary and capricious because it gives an infinite number of meanings to the same term in the same subsection of the same statute." If the 8th Circuit orders oral argument, they said, 15 minutes will be sufficient for each side, the same as the FCC/DOJ requested.