Most Comments Support Pennsylvania Reverse Pre-Emption on Pole Attachments

The Pennsylvania Public Utility Commission got much support for reverse pre-empting the FCC on pole attachments. In comments this week in docket L-2018-3002672, carriers said reverse pre-emption could speed dispute resolution, and electric companies said having a state regulator in charge could provide more balance than the FCC. Pole owners and riders disagreed on the degree to which the PUC would be able to deviate from FCC rules. Pennsylvania could be the first state in nearly a decade to reverse pre-empt the federal agency (see 1807250039).

Pennsylvania follows federal pole attachment rules, as do 29 other states, said an FCC document from May 2010 announcing Arkansas certifying authority. “There will be more pressure” on states to reverse pre-empt because broadband advocates know pole-attachment policies greatly affect time and costs of telecom deployment, predicted consulting company Tilson General Counsel Tim Schneider. At least one other state is considering it, and others may follow, “but it’s very tricky to pull off given that poles touch some of the most effective lobbies in state legislatures: electric utilities, cable companies, ILECs and wireless,” emailed Schneider. Deregulation means “many commissions have lost the institutional capacity or interest to engage on telecom issues, particularly ones as potentially contentious as pole attachment,” he said.

Don’t expect “a torrent” of state certifications for authority, “and any changes to the jurisdictional status in the pole-attachment area for state PUCs is going to continue to be episodic,” said Sheppard Mullin cable attorney Dave Thomas. The Pennsylvania PUC believes it has authority to reverse pre-empt, but such action historically has required state legislation, he said. To pass such a bill elsewhere, the issue has had to be “up on the agenda of the electric utility industry,” he said. Recent growth in wireless attachments could spur interest, he said.

The PUC “has been a useful forum for resolving complex and technical issues in a fair and balanced manner, and CTIA expects it will be the same in the pole attachment space,” the association commented. A state forum for dispute resolution could be faster and more efficient than the FCC process, which could attract broadband investment, Verizon said. ExteNet agreed: "Local control over pole attachments is generally more responsive than the FCC and allows responses to any unique geographic needs within that state.” The company said the FCC has shot clocks, but it "does not generally hold fast to these timelines and it generally takes months for resolution of disputes” there.

Rural phone companies have seen pole owners refuse to respond to attachment requests and charge exorbitant rates, commented the Pennsylvania Telephone Association: "'Local' adjudication of disputes by the PUC as opposed to the FCC envisioned by the reverse preemption in this docket should encourage … productive dialogue among the parties and provide a scenario for the efficient deployment of broadband in rural Pennsylvania.” CLECs including Velocity.net and Full Service Network supported reverse pre-emption to speed dispute resolution.

Electric utilities see possible benefits to having the PUC, which regulates energy and communications, as arbiter rather than a federal regulator specializing in communications. Duquesne Light believes the commission’s "assumption of jurisdiction over pole attachments will allow a more balanced approach to all of the competing demands.”

Crown Castle resisted reverse pre-emption, saying the FCC "has significant institutional expertise" and "has taken steps to expedite its review of pole attachment disputes." It would mean an increased workload for the PUC, the tower company said. Even if the agency adopted FCC rules, the two would be separately and independently interpreting rules in disputes, it said. “Generally, good public policy has the same agency that promulgates rules also interpreting and applying those.”

Implementing a state regime “may not be easy, but the end goal of providing a state forum for more uniform resolution of pole attachment issues is worthy of pursuit,” commented the Pennsylvania Office of Consumer Advocate.

Deviation Debated

Commenters agreed Pennsylvania rules should be based on national regulations. They differed on to what extent.

Big carriers said don't deviate from FCC rules. “If state regulation results in a lengthy fight over the applicable rules or creates an opening for parties to second-guess the FCC or make an end-run around rules or rates they do not like, then the resulting climate of regulatory uncertainty will make Pennsylvania less attractive for investment and innovation,” Verizon said. CTIA said automatically adopting future FCC rules “means each party gets one ‘bite of the apple’ to contest a rule at the FCC, and not another chance at the state level.”

Pennsylvania should be able to deviate to determine if rates, terms and conditions are just and reasonable, recognizing that the PUC has "primary responsibility to ensure the safety and reliability of pole distribution systems,” commented Exelon power company PECO. Protect privately negotiated agreements between pole owners and attachers, and allow companies to continue to make such agreements, PECO said. “Most pole attachment and joint use agreements have remained in effect for some time without dispute.” FirstEnergy raised concerns about automatically adopting FCC rules, noting it's asking the FCC to reconsider the Aug. 3 order. Changes to FCC rules should pass through the state's rulemaking process, the utility said.

The PUC should be able to customize FCC rules for Pennsylvania through rulemakings, ExteNet said. Pennsylvania statute allows the PUC to go beyond FCC rules by asserting regulation over municipally owned utility poles, it said. The PUC should require utilities to reveal existing pole attachment terms, ExteNet added.

Communications Workers of America sees reverse pre-emption as an opportunity to restore FCC rules from before the August one-touch, make-ready order the union opposed. Fully adopting "the FCC's newly effective pole-attachment regulations is not consistent with Pennsylvania law or the Commission's obligation to ensure the safety of utility facilities,” CWA said.

Rural electric cooperatives are exempt from FCC pole-attachment regulation, noted the Pennsylvania Rural Electric Association. “No telecommunications providers have proposed any viable options or plans to provide broadband service in cooperative service areas, and broadband service providers have not been able to extend existing broadband service to cooperative areas.”