The American Public Power Association and 133 public power utilities and associations on March 1 sent a letter to Rep. Anna Eshoo, D-Calif., supporting legislation she has introduced that would overturn actions by the Federal Communications Commission (FCC) to regulate public power pole attachments despite the clear public power exemption in section 224 of the Communications Act.
Eshoo introduced the bill, the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019 (H.R. 530), in January.
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.
“The FCC’s assertion of authority over public power pole attachments is in plain contravention of section 224 of the Communications Act that explicitly prevents the Commission from regulating attachments to public power electric utility poles,” the Association and more than 130 public power entities said in their letter to Eshoo.
In their letter, the Association and public power entities noted that, in its report and order, the FCC claimed its actions would remove regulatory barriers that would unlawfully inhibit the deployment of infrastructure necessary to support new broadband services.
“Yet the Commission provided no empirical evidence of public power utilities being a barrier to broadband deployment because of pole attachment rates or regulations,” the letter said. “Instead, it arbitrarily imposes federal, one-size-fits-all pole attachment regulations on public power utility poles.”
The Association and public power entities argued that this “regulatory overreach” by the FCC to regulate public power utilities using sections 253 and 332 of the Communication Act “limits the ability of public power utilities to responsibly and equitably manage their electric utility poles, and it is contrary to the clear exemption in section 224 and the express intent of Congress.”
The FCC’s actions also ignore legitimate concerns related to the placement of communications infrastructure on public power utility poles, the Association and public power entities said.
As an example, they said that accommodating wireless attachments above the electric line may create line worker safety issues and may run afoul of line worker safety standards such as the National Electric Safety Code, which is mandatory in some states.
“In addition, small cells and accompanying infrastructure may be too heavy or large for existing public power utility poles, and if existing poles cannot support this additional infrastructure, poles may break, fall, or otherwise cause electric reliability concerns. Finally, wireless attachments may cause radio frequency interference to utility systems, which also may affect electric reliability.”
Eshoo’s office on March 5 issued a press release touting the letter.
“From New York City to San Jose, over 250 local governments and public utilities support H.R. 530 to reinstate local communities’ voices in 5G deployment,” Eshoo said in the press release. “The benefits of 5G will be substantial, and I’m committed to making sure the gains made are equitable.”
Association members approve pole attachment resolution
The American Public Power 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.
On Nov. 15, 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.