NARUC Sees FCC 'Overreach' as States Deepen Focus on Pole Attachments

States joined local government officials sounding the alarm over an FCC plan to ban state and local moratoriums on new wireless and wireline facilities (see 1807240035 and 1807130045). The draft order also includes one-touch, make-ready rules and is set for vote at next Thursday’s commissioners' meeting. States’ interest in pole attachments is increasing as they look to spur broadband, state commissioners said in interviews. Pennsylvania sees a need to take a stronger role in pole attachment disputes as part of that effort, said Public Utility Commission member Norman Kennard.

"We're not crazy about" the FCC draft order, said NARUC President Jack Betkoski in an interview last week at the meeting in Scottsdale, Arizona. "It's an overreach. It's something that should be left up to state regulators." The NARUC president's home state of Connecticut regulates pole attachments, but the Public Utilities Regulatory Authority vice chair is "concerned that it could compromise some of the things we've done in the state of Connecticut and moving forward."

Betkoski wants more dialogue with the FCC and remains optimistic about having a good relationship, he said. "Our goals as regulators, whether it be federal or state, should be the same, and that's to drive lateral, affordable access to utilities. … We need to try and get on the same page as much as we possibly can."

“Rather than removing uncertainty, this order is more likely to invite additional and unnecessary litigation,” said NARUC General Counsel Brad Ramsay. The proposed declaratory ruling on moratoriums “acknowledges what Section 253 says with respect to local governmental oversight of rights-of-way, but then ignores it -- particularly via the ‘de facto’ moratorium construct,” Ramsay said. That could “allow the FCC to micromanage public rights of way and all but eliminate the 253(c) explicit reservation that ‘nothing in this section affects the authority of a state or local government to manage the public rights-of-way.’” That section only conditions state or local authority to charge for ROW access, he said. Ramsay praised draft language supporting deference to states, localities and utilities on construction standards; saying such government officials are best positioned to respond to disasters; exempting pole attachments in states that chose to regulate pole attachments through reverse pre-emption; and recognizing 253 lets the FCC act case by case to pre-empt only state and local laws that inhibit restoration of broadband infrastructure post-disaster. NARUC has no position on the OTMR proposal.

“Reasonable checks on needless regulatory barriers” and OTMR will make infrastructure access fast, safe, affordable and predictable “by eliminating major obstacles to the deployment of fiber, 5G, and other next-gen technologies,” an FCC spokesman said.

“Any action the FCC takes is going to be viewed as overreaching by some state commissions,” said Raymond James analyst Frank Louthan. “You always see tension when the FCC tries to pre-empt” states, but it’s important for the FCC to address significant delays to 5G deployment brought by municipalities “for petty reasons,” he said. Municipalities may try to profit from attachments, going against the public interest of deploying services quickly and broadly, Louthan said. Cities “want to do the right thing” and “make sure they’re not being bulldozed,” but “cooler heads need to prevail,” he said.

“It is unfortunate that the FCC used the pretext of addressing pole attachments to attempt an unlawful power grab, to assert that Section 253 applies to personal wireless services, rather than addressing the failures" of a 2011 order, emailed Mitsuko Herrera, cable communications administrator for Montgomery County, Maryland. “These actions continue the FCC’s adversarial attitude towards local governments and pole owners, rather than build trust to create partnerships.” The FCC should direct the Enforcement Bureau “to expedite requests to enforce payments from attachers, new and existing, when bills for work performed by others is completed,” Herrera said. With one year of OTMR policy in Louisville, the FCC should “provide actual data about cost savings to help incentivize cooperation, rather than merely reiterating hopeful estimates,” she said.

Industry should stop claiming abuse by unnamed localities, said the Washington Association of Telecommunications Officers & Advisors in a letter to the FCC posted Wednesday in docket 17-84. WATOA protested NCTA’s June 11 letter alleging a “community in Washington” inappropriately refused to issue permits. “We object to the NCTA making a claim of abuse against a single, unnamed community, while highlighting our entire state,” said WATOA.

States on Poles

States are renewing interest in pole attachments, Betkoski said. "There's more and more need to put more pole attachments, more fiber and more infrastructure on the poles to be able to facilitate the communication services that we have available." State regulatory authority has been scaled back "significantly" on telecom, but commissions have power over service quality and pole attachments, Betkoski said. Ironically, NARUC's Telecom Committee is the most active even though state commissions regulate telecom "the least," he said. "We have these commissioners and staff … that really stay on top of the issues.”

State focus increased on pole attachments as broadband’s importance crystalized, said Kennard, spearheading a PUC rulemaking to assume pole attachment authority from the FCC (see 1807160047). Pennsylvania could be the first state to reverse pre-empt the federal agency in nearly a decade. “We’ve been talking about broadband for a long time,” and now, “people are taking it more seriously,” said Kennard, noting recent developments including Gov. Tom Wolf (D) establishing a state broadband office and the state House organizing a broadband caucus. “There’s a finite 3-foot vertical space on poles,” and the space can quickly become crowded, tough to manage and expensive to access, Kennard said. The PUC wants to know if having a local forum to hear pole-attachments disputes would be helpful.

“It’s becoming an increasingly important issue,” Louthan said. “Everyone wants more infrastructure deployed,” especially 5G, but there’s no regulatory framework for attaching small cells to municipal property, the analyst said. Pole attachments, where state regulators have authority and knowledge, is a way for utility commissions to get involved, he said.

Pennsylvania

Kennard wants to better enforce, not rewrite, rules for pole attachments in Pennsylvania, which today follows federal pole attachment rules like 29 other states, the commissioner said. “We’re relatively new at this,” so the PUC proposed adopting the FCC regulations as last updated in 2012, with a mechanism to automatically incorporate future revisions by the federal agency. “Let’s let the PUC get some experience” enforcing current rules, “and then two years from now, if we think we need to do something different or we disagree” with the FCC, the agency could consider changes, he said.

The PUC heard federal rules aren’t well enforced in its state, Kennard said. With mediators and more than 20 judges, the PUC can be a “quick-and-ready forum to hear these disputes in a commercially viable time and see if we can lower the expenses, reduce the confusion and chaos in that 3-foot space, and maybe create some semblance of order.” The PUC would have jurisdiction over poles owned by regulated electric and telecom utilities but not those of other entities including municipalities and rural cooperatives.

The commissioner wants comment on how the new authority would affect PUC resources, a question raised by Commissioner David Sweet at the agency’s July 12 meeting (see 1807120053). “I really don’t know what level of activity will be created by this,” Kennard said. The PUC acting as watchdog may encourage parties to resolve their own disputes, he said.

“We’re just getting the discussion going,” said Kennard, describing a lengthy process that he hopes to conclude in nine months. A comment period opens upon NPRM publication in the Pennsylvania Bulletin, expected in about two weeks. After comments and replies, the PUC would propose regulations that would be subject to a regulatory review process, which involves reviews by House and Senate committees with PUC oversight, the Independent Regulatory Review Commission, attorney general and the governor’s budget office. The PUC would revise proposed regulations based on those reviews, then take more public comments and send final regulations through that process.