Utilities Pan West Virginia's Close Adaptation of FCC Pole-Attachment Rules

Power companies reminded West Virginia it’s not bound by federal rules as the Public Service Commission develops pole-attachment regulations. The PSC collected comments Thursday after lawmakers reverse pre-empted the FCC (see 1910150014). West Virginia aims to join 20 other states and Washington, D.C.

The legislature didn't empower the PSC to regulate pole attachments "solely to follow the FCC's regulations lock-step," asserted Appalachian Power, Wheeling Power, Mon Power and Potomac Edison. "If that were the legislature’s intent, why empower the Commission to regulate pole attachments at all?"

Several FCC rules don’t work here, power companies argued. “The FCC’s definition of ‘pole attachment’ does not include attachments made by broadband-only service providers (like Google Fiber).” Don't use the telecom rate formula, “which the FCC created through a tortured methodology solely to yield a result identical to the ‘cable rate formula,’” they said. Don't adopt the self-help remedy for work in the electric power supply space, and don't take the ILEC complaint rule because joint-use agreements between electric utility agreements and telcos are unlike basic pole-attachment agreements, and this would undermine PSC authority.

Telecoms recommended few changes. Frontier Communications supported the state agency. CTIA urged prompt adoption to "help streamline pole attachment deployment and promote efficiency." The West Virginia Cable Telecommunications Association said adopting "rules consistent with the FCC, and with the large body of case law that accompanies the rules, promotes uniformity in pole attachment regulation and will facilitate broadband deployment and competition in West Virginia.” The association disagreed with wording to a rule on the utility’s burden when arguing a proposed rate is below its incremental costs.

It's good to adapt FCC mandates, but proposed state rules are "unnecessarily complex [and] unneeded given the Commission‘s existing procedural rules, and present an unwieldy and overly burdensome procedural course for attachers seeking a timely remedy for pole attachment complaints,” commented Segra, a fiber bandwidth company. The FCC dispute resolution process is much “more technical and rigid" than the state commission's, it said. The PSC should add a rule to adopt future updates of FCC pole attachment rules unless the state agency or a party wants to more closely examine the federal change, said the company.

Pennsylvania also seeks to reverse pre-empt FCC pole attachment authority. The Public Utility Commission finalized rules this summer, and certification isn't yet official. The PUC sent rules to the state's Independent Regulatory Review Commission, which plans to consider the rules Nov. 21 in Harrisburg, said an Oct. 22 letter by IRRC Executive Director David Sumner. If IRRC approves, the rules would go next to the state attorney general's office for OK, a PUC spokesperson emailed Friday. They would become effective upon publication in the Pennsylvania Bulletin, in mid-January at earliest, he said. "If IRRC raises issues, the timeline gets longer and more complicated."