Battle Lines Clear Over Pole Attachment Disputes

The FCC opened a can of worms when it invited comments concerning public input on establishing clear standards for how utilities and attachers must share in pole replacement costs. Comments in the Second Further Notice of Proposed Rulemaking were due Monday evening.

The agency wants to further streamline its pole attachment rules before billions in broadband dollars start flowing. The FCC asked questions such as who should pay the cost of pole replacement when that isn’t determined by a new attachment request, and whether utilities benefit from various types of pole replacements. It asked if it should require utilities to pay a proportional share of all replacement costs.

The Wireless Infrastructure Association says the proposed changes are critical. WIA urged the Commission to clarify its rules related to pole replacement costs and end the practice of pole owners requiring attaching entities to bear the full cost of pole replacement.

“As billions of dollars in federal funding become available for broadband expansion, there is a distinct need for the Commission to streamline regulations and to remove barriers to wireless infrastructure deployment,” states WIA. “Clear rules related to pole replacement costs are needed to ensure that these investments are not delayed or squandered through excessive make-ready costs.”

WIA encouraged the Commission to:

  • Clarify that pole owners generally benefit from a pole replacement, even when a replacement is precipitated to add capacity for a new attacher, and that its rules do not permit pole owners to impose the entire cost on the new attacher in light of this benefit.
  • Provide clear guidance for attachers and pole owners regarding allocation of costs to replace or upgrade poles.
  • Narrowly construe the reference in Section 1.1408(b) to costs “necessitated solely” by a new attachment to apply only to discrete make-ready needs precipitated by the new attacher.

Crown Castle agrees with WIA that pole owners benefit from pole replacement, and new attachers should not pay 100 percent of the cost of replacing a pole. “[P]ole owners should be required to pay for at least a portion of pole replacements, even if the replacement is solely to create capacity for a new attachment,” states Crown Castle. “Allocating a portion of the cost of pole replacements to pole owners is appropriate because, as the expert economists in the Brattle Group explain, pole owners directly benefit from all pole replacements, including replacements undertaken solely to increase capacity for a new attachment.”

The Commission should also clarify that certain practices employed by pole owners are “unreasonable and improper,” according to Crown Castle. It gives an example in which “some pole owners continue to misuse the pole attachment process by delaying pole replacements until there is a new attachment request and then demanding that the new attacher pay the whole cost of replacement. Similarly, some pole owners demand that a pole be upgraded to a taller or stronger pole, even when not required by NESC standards.”

 Current Rules Enough

But Verizon told the agency the Commission’s pole replacement rules do provide clear and simple standards that reduce disputes and promote deployment. “The current rules correctly allocate costs and provide the clarity and predictability needed to reduce disputes and promote deployment,” wrote Verizon. “The pole-replacement cost-shifting proposals discussed in the Second Further NPRM would not advance the Commission’s goal of easing pole access to help advance broadband deployment. Instead, the proposals would increase costs for communications providers and create costly and unnecessary disputes that would delay deployment.”

The Colorado Association of Municipal Utilities, the Colorado Communications and Utility Alliance, and Colorado Springs Utilities agreed, noting the Commission should not create bright-line rules which recognize that utilities directly benefit from pole replacements that are precipitated solely by a new attachment request. “The Colorado Municipal Commenters urge the Commission to decline such express recognition, because any incidental benefit of a pole replacement to a municipal utility is far exceeded by the cost of the replacement pole,” the groups told the FCC.

By Leslie Stimson, Inside Towers Washington Bureau Chief

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