For easy printing, download the Preserving the Municipal Exemption from Federal Pole Attachment Regulations Issue Brief.
Summary
Several times since 2010, the Federal Communications Commission (FCC or Commission) has recommended that Congress eliminate the exemption public power utilities and rural electric cooperatives have from FCC regulation of pole attachments under the guise of facilitating broadband deployment. Since 2016, the FCC has opened four dockets that reflect its desire to regulate, either explicitly or implicitly, public power utility poles even though the Commission is barred from doing so under section 224 of the Communications Act. In September 2018, the FCC issued a report and order asserting its authority to preempt state and local laws and agreements, including those related to pole attachments. In 2021, there were unsuccessful efforts to include language in bipartisan infrastructure legislation that could have further weakened public power utilities’ exemption from federal pole attachment regulations.
The American Public Power Association (APPA) opposes any efforts by Congress to weaken or eliminate the municipal exemption public power utilities have from federal pole attachment regulations. The association also opposes the FCC’s efforts to circumvent well-established federal law that precludes the Commission from regulating public power utility poles. In addition, APPA opposes any attempts by the FCC or Congress to impose a one-size-fits-all approach to the make-ready process for attaching to poles.1
Background
The term pole attachment refers to the process by which communications companies can collocate communications infrastructure on existing electric utility poles. This reduces the number of poles that must be built to accommodate utility services, while reducing costs to users of both services by allowing providers to share costs. Rules governing pole attachments must balance the desire to maximize value for users of both electric and communications services with concerns unique to electric utility poles, such as safety and reliability.
In 1978, Congress passed the Pole Attachment Act, which added section 224 to the Communications Act of 1934, to require the FCC to establish subsidized rates for pole attachments for the then-new cable industry. Under the law, public power utilities and rural electric cooperatives were exempted from this requirement “because the pole attachment rates charged by municipally owned and cooperative utilities [were] already subject to a decision-making process based upon constituent needs and interests.” This exemption continued through multiple telecommunications reform efforts, including enactment of the Telecommunications Act of 1996, because Congress maintained that the existing process is appropriate and adequate. Attachment rates for public power utilities are usually determined at the local level and if a utility is seeking excessive pole-attachment rates, the affected attacher has the remedy of challenging the rate at the local level. In a few states, public power attachment rates are governed by state law.
In 2009, Congress directed the FCC, through the American Recovery and Reinvestment Act (ARRA), to develop and deliver to Congress within one year a National Broadband Plan (NBP) to ensure that every American has access to broadband capability. On March 16, 2010, the Commission released its NBP, which recommended, among other things, that “Congress should consider amending Section 224 of the Act to establish a harmonized access policy for all poles, ducts, conduits, and rights-of-way.” In this recommendation, the FCC singled out the exemption of “poles owned by cooperatives, municipalities, and non-utilities,” and poles in states that have adopted their own system of regulation, noting that 85 million poles are not subject to its jurisdiction. However, the Commission cited no cases where the exemption proved to be an impediment to broadband deployment. In fact, the FCC provided no rationale for removing the exemption except to have a “uniform policy for broadband access to privately-owned physical infrastructure.”
Regulatory Action
In April 2017, the FCC issued two notices of proposed rulemaking (NPRM) and two notices of inquiry (NOI) with the purported goals of removing barriers to wireless and wireline broadband deployment. Among other things, the NPRMs and NOIs proposed to implement shot clocks and “deemed granted” rules for siting applications and to accelerate pole attachment processes, as well as reduce pole attachment fees and makeready costs. They also sought comment on whether the FCC can preempt state and local laws that the Commission perceives as creating barriers to deployment. The Commission asked whether it could use section 253 to regulate poles not subject to its jurisdiction under section 224. APPA submitted comments on the NPRMs and NOIs highlighting the statutory municipal exemption from federal regulation of pole attachments in section 224 and explaining why lower pole attachment fees and burdensome application processes are unnecessary.
In four orders issued between 2017 and 2018, the FCC addressed various parts of the April 2017 NPRMs and NOIs. In the first three FCC orders, the Commission excluded capital costs from pole attachment rates, set “shot clocks” on the time a utility has to respond to pole attachment complaints, and excluded certain utility pole replacements from historic preservation rules. In its final order, the Declaratory Ruling and Third Report and Order (R&O), issued in September 2018, the FCC preempted state and local laws and agreements, including those related to pole attachments, to “remove regulatory barriers that would unlawfully inhibit the deployment of infrastructure necessary to support these new [broadband] services.” Citing several recommendations set forth in the Broadband Deployment Advisory Committee model codes, the R&O set uniform rates and regulations on public power utilities’ pole attachments. This was done despite the clear language in section 224 that public power utility poles are exempt from FCC regulation.
APPA challenged the Commission’s R&O in federal court. The U.S. Court of Appeals for the Ninth Circuit upheld the FCC’s R&O stating the Commission could use section 253
to prevent local governments from creating barriers to wireless small cell deployment, including with respect to access to public power utility poles, but clarified that it could not use it to regulate the specific rates, terms, or conditions of public power pole attachments.
Congressional Action
In January 2019, Representative Anna Eshoo (D-CA) introduced H.R. 530, the Accelerating Broadband Development by Empowering Local Communities Act of 2019, to overturn the FCC’s September 2018 R&O that allows the FCC to preempt state and local pole attachment laws and agreements. APPA and over 130 public power entities sent a letter to Representative Eshoo in March 2019 expressing support for H.R. 530, which had 59 co-sponsors. Senator Dianne Feinstein (D-CA) introduced a Senate companion to H.R. 530, S. 2012, which APPA also supported. Unfortunately, neither bill was considered in the 116th Congress.
In 2021, as Congress considered what broadband policies to include in bipartisan infrastructure legislation, there was an effort to include language that could impact public power pole attachments under the false guise of eliminating barriers to broadband deployment. In May, the House Republican Conference proposed H.R. 3435, the American Broadband Act, for inclusion in infrastructure legislation. The package of broadband bills sought to reduce regulations perceived as barriers to broadband deployment. It sought to expand section 253 of the Communications Act as a possible means for attachers to challenge public power pole attachments rates, timelines for attachment, or legitimate denials for attaching at the FCC even though the FCC is precluded from regulating public power utility pole attachments under section 224 of the Communications Act.
In the Senate, two proposals were offered that included language on pole attachments. The first, S. 2071, the BRIDGE Act, by Senators Michael Bennet (D-CO), Rob Portman (R-OH), and Angus King (I-ME), would create a federal broadband grant program that would require states and localities to charge a “reasonable fee consistent for what it would charge for utility permits” for access to rights-of-way, including a pole attachment, to any entity receiving grant funding. The second, S. 2911, the American Broadband Buildout to Eliminate the Digital Divide Act, by Senators John Cornyn (R-TX), Joe Manchin (D-WV), Susan Collins (R-ME), and Jacky Rosen (D-NV) would create a federal broadband grant program administered through the states that would, in the name of expediting the deployment of broadband, require states to establish “procedures for expedited approval of necessary access to (and construction of) poles,” other public infrastructure, and “state and local rights-of-way permits.” While not a repeal of the public power exemption in section 224 of the Communications Act, the language in the bill could weaken local control of pole attachments without ensuring public power electric customers are not subsidizing grantees’ projects by recouping actual costs incurred or jeopardizing the safety of lineworkers and customers from third-party attachers that do not correctly install equipment on poles. Fortunately, the Infrastructure Investment and Jobs Act that was signed into law by President Biden in November 2021 did not include pole attachment language from any of these bills.
APPA Position
APPA strongly supports the FCC’s goal of ensuring every American has access to broadband capability. However, the association strongly disagrees with the Commission’s assertion that Congress should consider eliminating the municipal/cooperative exemption in section 224 of the Communications Act to “create a uniform policy for broadband access to privately owned infrastructure.” The FCC has provided no evidence that the exemption is an impediment to broadband deployment, and it has ignored Congress’s long-held belief that the pole attachment rates charged by public power utilities and cooperatives are reasonable because they are “subject to a decision-making process based upon constituent needs and interests.” APPA also disagrees with the wireless industry’s assertion that the Commission should regulate public power utilities under a broad provision of the Communications Act pertaining to government-owned rights-of-way.
APPA opposes any effort by Congress to weaken or gut the exemption for public power utilities from federal pole attachment regulations or eliminate it entirely. The association also opposes any assertion of authority by the FCC over public power utility poles, such as that in the R&O, in contravention of the explicit municipal exemption in section 224 of the Communications Act. In addition, APPA opposes any efforts to create model rules for pole attachments because one-size-fits-all, model pole attachment regulations are unworkable for public power utilities due to their diversity in size, operation, and governance structures. Public power utilities are owned by and accountable to their customers. They have a responsibility to ensure their customers are not subsidizing communications attachers and that safety and reliability are not compromised by unauthorized or improper attachments.
References
1. “Make-ready” policies govern the process for accessing and preparing utility poles for attachments.