The FCC says utilities can’t tell telecoms their poles are off limits. The ruling is a victory for CTIA, which sought clarification a year ago to the agency’s pole attachment rules. The trade group said some utilities are misinterpreting the Commission’s pole attachment rules in a way that hampers broadband deployment.
CTIA asked the FCC to clarify that “pole” includes light poles and that utilities must afford nondiscriminatory access to light poles at rates, terms, and conditions consistent with the requirements of section 224 and the Commission’s pole attachment rules. The trade association also asked the Commission to affirm that utilities may not impose blanket prohibitions on access to any portions of their poles; and declare that utilities cannot ask providers to accept terms and conditions that are inconsistent with the Commission’s rules.
In a declaratory ruling Wednesday, the Wireline Competition Bureau found evidence to support two of CTIA’s beefs. The bureau said, “the record shows that many pole owners continue to deny access summarily to all or part of poles, without giving reasons for denying access that are specific to the pole or attachment.” The agency clarified that the imposition of a “blanket ban” by a utility on attachments to any portion of a utility pole is inconsistent with the federal requirement that a “denial of access . . . be specific” to a particular request.
The agency also agreed with CTIA that without clarification of the Commission’s support for mutually bargained-for solutions such solutions “for pole attachments would rarely, if ever, occur absent the rules, given the uneven bargaining leverage. The utility is the ‘gatekeeper’ to its poles, while the attacher lacks any gatekeeper position.” The bureau found it necessary to clarify that attachers must receive some benefit, other than the right to attach to poles (already guaranteed by section 224), in exchange for agreeing to rule deviations that benefit utilities.
The bureau anticipates its clarifications will allow attachers to better plan deployments. It also believes the explanations could reduce burdens on utilities as attachers wouldn’t file applications that cannot comport with the utilities’ published standards. Any disputes regarding the validity of a utility’s general pole attachment requirements can be raised with the Commission via a pole attachment complaint.
While the FCC has streamlined several rules to speed small cell deployment, CTIA pointed out in its petition why clarifications are needed. Crown Castle submits that “[p]ole owners often impose ad hoc, unilateral bans on the attachment of particular equipment to utility poles or attachment to particular sectors of a pole without providing clear safety or engineering rationale.”
AT&T explains that “some electric utilities have continued to adopt blanket prohibitions against certain types of attachments or for portions of poles, without providing any specific or legitimate basis for those prohibitions” and that such “prohibitions are impeding AT&T’s ability to timely and efficiently deploy the infrastructure needed to support 5G services.”
“Utilities have continued to resist giving access to pole tops. They have also flatly denied access to lower portions of poles, below where utility and cable lines are typically attached—sometimes referring to this area as ‘unusable’ space,” said CTIA in its 2019 petition. “Providers also continue to confront blanket restrictions on access to unusable space that do not comply with the requirement that they make a pole specific showing of risks to safety or reliability.”
Utilities argued that granting CTIA’s request will interfere with the enforcement of reasonable engineering and safety standards. The FCC disagreed. The agency said: “utilities can deny pole access in a particular instance on a nondiscriminatory basis ‘where there is insufficient capacity, and for reasons of safety, reliability, and generally applicable engineering purposes.’ We simply make clear today that utilities need to exercise such discretion consistent with the specificity requirement in section 1.1403(b) of the Commission’s rules and that use of a blanket ban does not comply with this specificity requirement.”
By Leslie Stimson, Inside Towers Washington Bureau Chief