The American Public Power Association on Nov. 15 filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit challenging a recent Federal Communications Commission (FCC) declaratory ruling and order that the FCC said could help to remove regulatory barriers that inhibit the deployment of infrastructure necessary for 5G and other advanced wireless services.
Among other things, the Association argues that the FCC’s actions exceed the Commission’s statutory authority and pose significant risks to safe, secure, and reliable electric utility operations.
At issue is a declaratory ruling and order adopted on September 26 and released on September 27 that may result in FCC pole attachment oversight and regulation of public power utilities, despite the explicit exemption for public power in Section 224 of the Communications Act.
Under the ruling 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, or conditions of pole attachment agreements, using Section 253 (related to ROW) and Section 332 (related to wireless services) of the Communications Act.
Details of ruling and order
In the decision, the Commission explains the national need for next-generation technology and outlines approaches to curtailing actions of cities and states that the FCC claims “threaten to limit the deployment of 5G services.”
The FCC solution to state and local laws it deems “barriers” to deployment is to preempt state and local laws, rules, regulations, or agreements that do not fall within rigid limitations set forth by the FCC within the order. For communities with public power utilities, the FCC suggests that laws, regulations, or terms and conditions of agreements pertaining to public power utility pole attachments could also be preempted.
The FCC ruling and order uses two sections of the Communications Act to preempt state and local laws and requirements.
The Commission noted that Section 253 provides that “[n]o state or local statute or regulation, or other state or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”
It also discussed Section 332, a provision that, among other things, prohibits states and localities from discriminating among providers of wireless services or prohibiting the provision of personal wireless services.
The Commission made it clear that it believes Congress drafted Sections 253 and 332 broadly. The FCC offers several examples of its orders interpreting these provisions broadly in favor of expanded Commission authority.
Association argues that FCC has improperly asserted regulatory authority and jurisdiction
In its Nov. 15 petition for review, the Association told the appeals court that the FCC has “improperly asserted regulatory authority and jurisdiction over the control and use of public power utility facilities.”
In addition, the Association argues that the FCC’s action “exceeds the Commission’s 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 public power trade group noted that it actively participated in all phases of the Commission’s underlying proceeding, adding that its member public power utilities will be adversely impacted by the ruling and order.
The Association is seeking review of the ruling and order on the grounds that they are “contrary to law, including, but not limited to, the Constitution of the United States and the Communications Act of 1934, as amended,” and arbitrary, capricious, and an abuse of discretion.
The court was further asked to “hold unlawful, vacate, enjoin, and set aside” the ruling and order.
Association filed comments with the FCC
Prior to the late September decision from the FCC, the Association filed comments and reply comments with the FCC noting the existence of the public power exemption from FCC regulation of pole attachments set forth in Section 224 of the Communications Act, as well as the distinction between local government actions that are proprietary versus those that are regulatory in nature – such as pole attachment decisions made by public power utilities.
In its order, the Commission ultimately ignored the argument regarding the public power exemption from pole attachment regulation, and it failed to provide any meaningful analysis of how Sections 253 and 332 are impacted by Section 224.
Rather, the FCC conflated publicly-owned ROW and facilities, which may or may not be appropriately covered by Sections 253 and 332, with publicly-owned electric utility poles located in public ROW that are covered under Section 224.
For example, the Commission continuously referred to “utility poles” when discussing publicly-owned infrastructure, which the Commission said in its ruling and order is subject to preemption under Sections 253 or 332.
The FCC also alluded to Section 224 when discussing “reasonable fees,” and it used the existing FCC pole attachment rate formula when determining appropriate fees for purposes of its analysis.
Association voiced opposition to pole attachment legislation
This past summer, the Association voiced opposition to legislation that would effectively repeal the public power exemption from FCC pole attachment regulations.
The bill broadened existing sections of the Communications Act in a way that would give the FCC jurisdiction over public infrastructure located in the public ROW, including public power utility poles. If passed, this bill may ultimately require public power utility customers to subsidize infrastructure deployment of for-profit communications providers, the Association said.
At issue was S. 3157, sponsored by Sens. John Thune, R-SD, and Brian Schatz, D-HI.