Utilities Argue Against FCC's Proposed Light Pole Attachment Authority

The FCC deciding that its authority under Section 224 of the Communications Act, which covers pole attachments, also extends to light poles "clearly exceeds Congress's authority and judicial precedent" and runs contrary to public policy, said the Utilities Technology Council (UTC). Light poles carry "highly complex contractual and safety and public policy issues" that also tip the scales against FCC regulation.

The Coalition of Concerned Utilities said allowing wireless attachment installations on light poles already is "expensive, complicated, and time consuming." The incentives for utilities to accommodate those installations "would disappear" with FCC regulation.

Dominion Energy and Xcel Energy argued that "the vast number of structural, operational, technical, and practical differences" between light poles and electrical poles make the application of FCC pole attachment rules to light poles insupportable.

Regulating streetlight attachments "is a legal and practical minefield," said utility companies including Duke Energy and American Electric Power. The Pole Attachments Act and subsequent judicial construction make clear that streetlights aren't within the scope of “distribution facilities” that Congress wanted the FCC to regulate, they said. But even if the FCC does have authority over light poles, regulation would "only stifle" the collaboration and cooperation needed for attachments.

CTIA, which petitioned the FCC in 2019 seeking nondiscriminatory access to utilities' light poles, said the FCC has "a clear legal basis" to act under the ordinary meaning of the word "pole." The group said some utilities are "good partners," offering reasonable access to wireless providers, while others impose lengthy delays, deny access completely or charge inflated attachment fees. Incompas also backed expansion of FCC authority to light poles, while Crown Castle Fiber said access to them "is vital for broadband deployment," especially in urban areas.

The Conservative Political Action Coalition Foundation's Center for Regulatory Freedom called for a technology-neutral clarification that utility-owned or -controlled light poles fall within Section 224 where appropriate. But it said Section 224 authority doesn't cover transmission towers or poles owned by excluded entities such as co-ops.

Jeffrey Westling, the American Action Forum's director of technology and innovation policy, said Congress clearly sought to make any rights-of-way controlled by utilities available to telecommunications carriers where feasible.

The 120-Day Issue

Backers of the 120-day deployment deadline included UTC and NCTA. NCTA also urged that utilities be required to adopt "effective communication systems" like electronic notification platforms to allow for easy updates on make-ready work completion. In addition, NCTA pushed for requiring itemized make-ready estimates on a pole-by-pole basis and making estimates binding.

The Coalition of Concerned Utilities said a 120-day attacher deadline after make-ready work would improve infrastructure planning and use and cut the administrative burden of prolonged tracking and follow-ups. If the deadline isn't met, the pole owner should be allowed to retract the attachment approval and offer the pole to the next attacher in line, the group suggested.

The Center for Regulatory Freedom said it supports "a reasonable 'use-it-or-lose-it' rule" regarding 120-day deadlines for post-make-ready work, with automatic tolling for delays due to utilities, permitting holds or supply chain interruptions. It also backed a cost ceiling on final make-ready invoices, with significant overruns needing written change-order approval.

Dominion and Xcel urged the FCC to set an even shorter attacher deadline of 75 days after make-ready work. Given the attachers' urgency in the proceeding, 75 days "should not be objectionable."

However, USTelecom said a deployment deadline, as well as more restrictions on application fees and make-ready cost caps, aren't necessary. Incompas called the proposed 120-day deadline "overly prescriptive." Wireless communications infrastructure operator Extenet argued that there's no justification for the deadline, since there's no evidence of any problem or prevalent issues caused by attachers significantly delaying deployment or failing to deploy. It said the NPRM's proposal that attachers pay all estimated costs within 30 days of a pole owner accepting an application is "another example of a proposed regulation solving a problem the record fails to demonstrate exists."

ACA Connects pointed out that delays in broadband deployments are generally caused by factors outside attachers’ control, negating the need for any deployment deadline. The group instead highlighted the problem of the negotiating power that utilities have over small providers. It laid out a series of recommendations to better balance that leverage, including adoption of a percentage-based cost ceiling for make-ready work that exceeds estimated costs.

A 120-day deployment deadline after the completion of make-ready work ignores all the reasons why deployment could be delayed, such as waiting for approvals for rights-of-way authorizations or authority for railroad crossings, said WTA. It's not clear how utilities are hurt by delays in the broadband provider’s completion of the pole attachments after the make-ready work is done, the group added.

Crown Castle said a post-make-ready deadline for deployment isn't necessary, but if the FCC still adopts one, 120 days isn't long enough. The company also "strongly" backed capping make-ready cost overruns without prior approval of the attached, complaining about unchecked overruns that often exceed estimates by 200%-300%. Breezeline called for a requirement that utilities need the attacher's preapproval when actual make-ready costs increase more than 10% above the initial estimate.

UTC argued against a cap on cost overruns, with utilities facing "the unreasonable risk" of not getting full reimbursement for their make-ready costs. In addition, while the group supported a rule requiring attachers to pay make-ready estimates within 30 days of accepting the estimate, it opposed barring utilities from requiring full or partial payment upon an attacher’s acceptance of the estimate.