The Federal Communications Commission does not have legal authority to regulate public power pole attachments due to the clear public power exemption from federal pole attachment regulations set forth in section 224 of the Communications Act, the American Public Power Association said in a recent court brief.
At issue is a report and order adopted on Sept. 26, 2018, that may result in FCC pole attachment oversight and regulation of public power utilities.
Under the report and order, the FCC could preempt state and local laws or requirements governing access to public rights-of-way (ROW) and publicly-owned infrastructure within the ROW, including rates, terms, and conditions of pole attachment agreements, using Section 253 (related to rights-of-way), and Section 332 (related to wireless services) of the Communications Act.
In November 2018, the Association filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit challenging the FCC report and order. The case has subsequently been moved to the U.S. Court of Appeals for the Ninth Circuit, where it is currently pending.
Association files opening brief
On June 10, the Association filed its opening brief with the U.S. Court of Appeals for the Ninth Circuit appealing the FCC’s September 2018 report and order.
The Association notes in the brief that for over forty years, the FCC, Congress, and the courts have repeatedly recognized that the FCC does not have regulatory authority over the rates, terms, and conditions of access to public power utility poles.
But in its order, the Commission “executed an abrupt logic-defying U-turn from any and all existing laws and precedent and found that it does have such authority after all. The Commission is mistaken,” the Association argued.
The FCC is suggesting that Sections 253 and 332 of the Communications Act “somehow override the restrictions on its authority over public power utility poles,” the Association said. Such an argument “cannot be reconciled with the statutory language, legislative history, court decisions, and repeated prior Commission pronouncements.”
The Association points out that neither Section 253 nor 332 even mentions government-owned electric utility poles, ducts, or conduits, “much less does either of these provisions purport to empower the Commission to regulate rates, terms, and conditions of access to such facilities. Faced with this conspicuous silence, the Commission suggests Section 253 and Section 332 implicitly authorize it to step in and regulate access to these facilities.”
The FCC “completely ignores the fact that Congress expressly withheld such authority from the Commission elsewhere in the same title of the Communications Act.”
The Association said that Congress clearly understood the distinction between, on the one hand, state and local government regulation of public rights-of-way, and on the other hand, government entities controlling access to government-owned facilities, such as utility poles, that are used in a proprietary capacity.
The public power trade group noted that in the Telecommunications Act of 1996, Congress at the same time dealt with the former in Section 253 and the latter in Section 224. “Congress thus presumably acted ‘intentionally and purposely’ in excluding public power utility pole attachments from the scope of Commission’s jurisdiction allowed under Section 253 of the Communications Act.”
Moreover, in holding that Sections 253 and/or 332 apply to public power utility poles, the Commission concluded that: (1) Section 253 and/or 332 apply to proprietary as well as governmental activities; and (2) that public power utilities own, operate, and control access to their utility poles in a regulatory rather than a proprietary capacity. These conclusions are wrong, the Association said.
“The Commission’s conclusions ignore explicit court and Commission findings that Sections 253 and 332 only apply to state and local government entities acting in their regulatory capacity and do not apply to government entities when engaging in proprietary activities,” the Association went on to argue.
The public power group said that the FCC’s “overly expansive interpretation of the scope of Section 253 and 332 is arbitrary, capricious, an abuse of discretion, and not in accordance with its statutory authority; poses significant risks to safe, secure, and reliable electric utility operations; and interferes with the proprietary rights of public power utilities to determine the terms and compensation for use of their utility assets by private wireless carriers.”
The Association said the FCC’s conclusion that it has authority over public power utility poles under Section 253 and Section 332 “is based on its novel interpretation that these sections do not just apply to government entities acting in a regulatory capacity, but also to government entities acting in a proprietary capacity.”
This conclusion “dismissively brushes aside prior Commission and court interpretations to the contrary.”
The Association also said that by adopting its new and expansive interpretation of its jurisdiction under Sections 253 and 332, the FCC has sought to assert authority to regulate the rates, terms, and conditions of access to public power utility poles – including the imposition of regulatory “shot clocks” – in direct contradiction to Congress’s explicit denial of such authority under Section 224.
Order is disrupting good working relationships
If upheld, the FCC order “would effectively commandeer public power utility facilities for use by wireless carriers,” the Association told the court.
The order “is disrupting what were generally good working relationships between public power utilities and wireless carriers.”
Before the Commission issued its order, public power utilities typically sought to accommodate requests for access to their utility poles by wireless companies, and they usually found ways to do so. Now, wireless companies are approaching members of the Association and attempting to use the order “as a cudgel to demand rushed access to utility poles at below-market rates and/or to invalidate the terms and conditions of existing pole attachment agreements that had been working well for all concerned.”
The order assumes an immediate need for ubiquitous access to utility poles “despite the fact that in many areas of the country wireless carriers are simply not yet seeking to deploy wireless small cell facilities. This is particularly true in the rural and smaller communities that comprise the majority of public power utility service territories.”
The Association asked the Ninth Circuit to reverse the Commission’s order in its entirety, and in particular with respect to its application to public power utility facilities.
Association members approve pole attachment resolution, Eshoo introduces bill
The Association’s members on Feb. 26 approved several new policy resolutions including one in which the Association states its opposition to the FCC action in the Sept. 26 report and order.
The following month, the Association and 133 public power utilities and associations on March 1 sent a letter to Rep. Anna Eshoo, D-Calif., supporting legislation she introduced that would overturn actions by the FCC to regulate public power pole attachments.
Eshoo introduced the bill, the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019 (H.R. 530), in January.