Utilities and Attachers Continue to Clash Over Potential Rules for Pole Attachments

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As the Federal Communication Commission (FCC) prepares to unveil new rules for pole attachments at its next Open Commission meeting on April 7, 2011, parties from all sides - utilities, ILECs and attachers - continued to meet with the FCC and/or send letters arguing their cases. Most recently, the President and CEO of Tampa Electric Company filed a letter opposing regulated rates for ILECs and pole top access for wireless attachments. In addition, utility groups, such as the Alliance for Fair Pole Attachment Rules, opposed "rumors" that the FCC was preparing to expand pole attachment regulation to include regulated rates for ILECs and access to pole tops for wireless attachments. In its ex parte filings with the FCC, the Alliance argued that the FCC failed to provide sufficient notice that it would regulate the rates of ILEC attachments. In fact, the FCC stated the opposite: that it did "not propose specific rules in this Further Notice that would alter the Commission's current approach to the regulation of pole attachments by incumbent LECs." Further, the Alliance explained that the consequences of regulating ILEC rates would be harmful to broadband and electric consumers. Finally, the Alliance explained how it would contradict the plain language of Section 224 of the Communications Act and the legislative history to regulate ILEC rates, and that the Commission should follow former FCC Chairman Powell's admonition not to interpret the scope of Section 224 beyond its bounds to pursue policy goals, such as pole top access and access by unqualified third party contractors into the electric space on the pole.

Meanwhile, various ILEC stakeholders -- including Verizon, AT&T, Fairpoint, CenturyLink, Qwest, Windstream and USTA -- continued to press for regulated rates for ILECs, claiming that they were unable to obtain reasonable rates under joint use agreements due to various factors, including their disparity in pole ownership. They also continue to claim that the FCC has authority under Section 224(b) to regulate ILEC rates, which is not limited by Section 224(f) and Section 224(a)(5) -- which taken together exclude ILECs from regulated rates for telecommunications carriers. Finally, they claim that regulated rates for ILECs will promote broadband deployment by reducing construction costs, particularly in rural and underserved areas.
Even NCTA and other cable stakeholders are supporting the concept of regulated rates for all broadband providers, including ILECs. In addition, they are also pushing the FCC for a host of access requirements including make ready deadlines. Finally, they oppose any penalties for unauthorized attachments, similar to those that the state of Oregon imposes. They claim that utilities "overstate" the extent to which there are unauthorized attachments and they claim that the Oregon penalties "led to massive costly disputes among attachers and pole owners" and were ultimately reduced and revised to allow for a 60-day grace period to correct problems.




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