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Bill would overturn FCC order impacting public power pole attachments

Rep. Anna Eshoo, D-Calif., on Jan. 14 introduced legislation that would, among other things, overturn a Federal Communications Commission (FCC) order that attempts to regulate public power pole attachments despite the clear public power exemption from federal pole attachment regulation set forth in the Communications Act.

At issue is a report and order adopted on September 26 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 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 public ROW, including pole attachment laws or requirements, as well as rates, terms, or conditions of pole attachment agreements. The report and order relies on Section 253 (related to ROW) and Section 332 (related to wireless services) of the Communications Act, but it ignores the public power exemption from pole attachment regulations in Section 224.

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 the FCC report 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.

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 argued 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.”

Eshoo’s bill, H.R. 530, the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019, would overturn regulations promulgated by the FCC related to broadband siting including the FCC order that attempts to regulate public power pole attachments.

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