Utility and Cable Interests Seeking Pole Attachments Draft Changes

The pole attachment item goes to common bottleneck issues, communications infrastructure deployment lawyer Maria Browne of Davis Wright told us. Key to the order is the obligation it creates for pole owners to tell attachers much earlier in the process whether they can do the make-ready work or not, she said. "It's going to make a difference," she said.

Browne said the item's creation of a timeline for adding contractors to the list of those approved to work on a utility's poles also should play a big role in getting contractors onboarded quickly, she said.

"I don't think it moves the needle very much," as it focuses on larger orders involving thousands of poles, CCG Consulting's Doug Dawson emailed. He said it largely benefits big overbuilders like AT&T. The item, as is usual with pole attachment rules, also affects only the states that remain under FCC pole regulations, Dawson said. The rest "will have to decide if they are interested in these rules," he said, adding that many haven't adopted the red-tagging pole rules from the 2023 pole attachment order (see 2312130044). Some states "haven’t even adopted the one-touch, make-ready rules from three orders ago," Dawson said.

NCTA told the FCC it and member companies were "very supportive" of the item. A docket 17-84 filing Wednesday recapped meetings with the commissioners' offices and the Wireline Bureau at which cable interests pushed for the advanced notification and meet-and-confer requirements applying only to large orders and to orders associated with government-funded grant programs. Those orders can require increased communication and coordination, the cablers said. They said applying the notice and meet-and-confer requirements to midsize orders could slow the process for completing business as usual orders that aren't scheduled in advance. Along with NCTA, Comcast, Charter and Cox Enterprises representatives met with the agency.

The cablers also told the FCC a 60-day advanced notice requirement also raises competition issues, with many utilities starting to provide broadband service.

Missing from the pole attachment item is any discussion of application fees or other costs utilities charge prospective attachers before an application gets accepted for filing, Breezeline said. It said investor-owned utilities in recent years have been significantly hiking fees charged for pole attachment applications and pole inspections -- sometimes by more than 50% without any justification offered. Breezeline said it also has seen utilities require it to hire parties to profile each pole before submitting an application.

Utility Concerns

Edison Electric Institute said in a docket filing posted Wednesday it backed many key parts of the order, such as a requirement that attachers provide written advance notice for midsize and large orders. In a meeting with Wireline Bureau staffers and Commissioner Olivia Trusty's office, EEI said attachers and utilities should have to meet within 30 days of written advance notice to negotiate processing of both midsize and larger orders. It urged that the 15-day utility notification period for make-ready feasibility should start at payment of the estimate, and that existing attachers should have to notify the new attacher and the utility within 15 days of receiving notice if they cannot meet the make-ready deadline.

The FCC should make clear the 30-day response requirement for contractor approval applies only to communications-related contractor work, EEI said. For electrical contract work, utilities need to keep control of the electric space for safety and liability purposes, Aryeh Fishman, EEI associate general counsel of regulatory legal affairs, told us.

The Utilities Technology Council, Xcel Energy and Dominion Energy, meeting with Carr's office, said the 30-day time frame for utilities responding to an attacher request to add contractors to the utility's approved-contractor list should apply only to requests for contractors "to perform self-help surveys, estimates and make-ready work in the communications space on the pole. "That would address the safety and reliability concerns related to contractors performing make-ready work above the pole's communications space, which requires more training and time for onboarding, the UTC group said in the docket this week.

AEP, Southern Company, Duke Energy, Entergy, Oncor Electric and Ameren, meeting with Carr and Trusty staffers, also raised questions about the 30-day contractor approval process with regard to power-qualified contractors vs. communications contractors.

ACA Connects head Grant Spellmeyer, meeting with Trusty, called the pole attachment item "a step in the right direction." ACA said in the docket that while agency actions in recent years have made some improvements to the pole attachment process, its members "continue to face excessive costs, inordinate delays, opaque processes, and other challenges when seeking to attach facilities to investor-owned utility poles when deploying broadband."

The accompanying Further NPRM could lead to speedier completion, Davis Wright's Browne said. For example, she said, the FNPRM asks for input on adopting a Utah-like approach, in which utilities can't charge the full amount for make-ready work upfront but must do so in stages. It also proposes a cap on the amount that make-ready costs can exceed what a utility estimated without requiring the utility to first get approval from the attacher, she said.

CTIA urged that the commission adopt the FNPRM and that it move on applying Section 224 of the Communications Act -- giving the FCC regulatory authority over utility-owned and -controlled poles -- to light poles. The statute doesn't define poles, and the ordinary meaning of a pole includes one that hosts lights, CTIA said.

EEI's Fishman told us if the FCC addresses light poles at all, it should be its own rulemaking with its own notice-and-comment, rather than be lumped in with other pole attachment issues.

The Coalition of Concerned Utilities said the FCC should reconsider footnote language in the pole attachment item about a utility's right to deny access because it runs contrary to U.S. Courts of Appeal for the 11th Circuit and the D.C. Circuit rulings.