The American Public Power Association on Sept. 21 filed comments on the Federal Communications Commission’s Notice of Proposed Rulemaking that proposes using section 253 of the Communications Act to establish presumptive limits on state and local government processing timelines, fees, and other requirements for wireline broadband deployment authorizations, including for public power-owned utility poles.
The FCC alleges that state and local government permitting processes for access to rights-of-way (ROW) and government infrastructure within the ROW are a barrier to the deployment of broadband due to excessive delays and charges that effectively prohibit telecommunications service deployment.
APPA’s comments oppose what is proposed in the FCC’s NPRM, arguing that Congress explicitly exempted public power utilities from federal regulation under section 224 of the Communications Act, and reaffirmed that exemption during the 1996 revisions to the statute when section 253 was added to it.
The comments also argue that public power utilities operate in a proprietary capacity as market participants when evaluating and entering pole attachment agreements, in the same manner as investor-owned utilities and rural electric cooperatives. Section 253 applies to entities acting in a regulatory capacity, which is not how public power utilities operate when providing electricity for a service fee using their infrastructure.
Finally, APPA contends the FCC record does not demonstrate evidence of widespread delays, excessive fees, or deployment barriers associated with public power poles. Therefore, the FCC lacks both the factual record and legal authority to impose blanket deadlines, fee regulations, or other nationwide requirements on public power utility pole attachments.
Reply comments in WC Docket 25-253 are due by November 5. APPA plans to file reply comments to reinforce the arguments raised by its members and other entities opposed to the NPRM.
