Fight Seen Brewing Over FCC's Light Pole Attachments Question

The light pole portion of the NPRM runs for 21 pages, seeking feedback on CTIA's 2019 petition about access to light poles -- a petition that faced utility industry opposition then (see 1911200033). "Light poles are suitable hosts for Small Wireless Facilities," and requiring nondiscriminatory access to them for communications networks "at rates, terms, and conditions that are just and reasonable could thus be a significant positive step toward the Commission’s connectivity goals," said the NPRM. The FCC said in the NPRM that it tentatively concludes "that codifying a definition of the term 'pole' generally and to include light poles would be a proper exercise" of its jurisdiction.

The opposition will likely stem from the fact that light pole owners don't readily benefit from allowing access to them, said Ken Schmidt, president of cell tower lease consultancy Steel in the Air. The cost of handling attachment applications is sizable, and the fees often don't cover that cost, he told us. Also, utilities and municipalities don't want to harm the poles, which generally are designed to hold just the light fixture, not other attachments, he said.

Schmidt said there will likely be questions raised in the proceeding about whether FCC authority legally extends to light poles. Broadband providers might not be champing at the bit to get access to light poles, he noted. Often it's costly to run a structural analysis on an existing pole to see if it can handle more equipment, Schmidt said, so it can be cheaper to put in a new pole alongside the existing one.

Just the fact that the FCC is asking about its light pole authority seems like a clear sign that Chairman Brendan Carr's office is contemplating a future proceeding that opens the door for a lot more attachments by providers, said Dave Thomas, a Sheppard Mullin network deployment lawyer. Complicating the issue is whether there's anything in the legislative history of pole attachments to indicate that Congress was contemplating using light poles for attachments, he said.

When the FCC previously considered attachments to light poles, the National League of Cities noted in an email that accelerating communications providers’ pole access "must not come at the expense of the safety, functionality, or design of city streets." "This includes ensuring that the contractors working on these poles are sufficiently qualified and that clear lines of responsibility and communication are maintained during preparation, work, and cleanup from movement or placement of equipment and wires on poles," it said. "While not every city operates an electric utility, all cities have a responsibility to their residents to ensure the integrity, safety, and maintenance of infrastructure on city streets."

Asked about the light pole issue, the Edison Electric Institute didn't directly address it but said the July order was important to ensure broadband deployment is as efficient as possible without compromising the safety, resilience or reliability of the electric grid.

Emailed former FCC Commissioner Mike O'Rielly: "For anticompetitive reasons or pure greed, the utility industry, especially the electricity sector, has repeatedly thrown up every barrier to prevent access and/or impose exorbitant costs for pole attachments, which are so critical in many places for broadband deployment ... It's doubtful that we will see a changed behavior here."

Beyond light poles, the NPRM asks an array of pole-related questions, such as seeking input on requiring attachers to deploy equipment on poles within 120 days of completion of make-ready work and to pay an estimate to a utility within a specific period of time after the attacher’s acceptance of the estimate. It also asks for input on capping the amount that final make-ready costs can exceed the utility’s estimate without requiring the utility to get the attacher's approval.