Utilities Hopeful for FCC Action on EEI Petition

Utility companies are hopeful the FCC will act on the Edison Electric Institute’s petition for clarification that the statute of limitations on all pole attachment complaint proceedings is two years and refunds aren't "appropriate" before a "good faith notice of dispute” (see 2104210046). ISPs remain opposed to the petition and say the issue has been addressed by the commission in recent rulings. Replies are due Sept. 10 in docket 17-84.

Central to EEI’s request is how the FCC decides the applicable statute of limitations. The FCC's November decision to borrow statutes of limitations under state law for federal claims as it did in Verizon's claim against Potomac Edison was a "flawed, discriminatory” approach that “leads to highly variable results and creates regulatory uncertainty," said EEI's April petition (see 2011240037). The FCC didn’t comment Thursday.

"Regulatory certainty is an important variable" for grid planning, and the "process for resolving disputes varies greatly by state, creating substantial legal risk for the electric companies that are making system upgrades to accommodate telecom equipment," emailed an EEI spokesperson Thursday: "Stakeholders should be working together to enable the investments we need for a clean and resilient energy future and to bring broadband to unserved and underserved communities, which is why we are petitioning the FCC to develop consistent regulations for the states that are subject to FCC regulations." EEI's request "still would allow stakeholders to reasonably challenge rates and resolve disputes associated with pole attachments, while not burdening electricity customers with costs incurred while making system upgrades designed to accommodate the needs of telecom providers," he said.

Borrowing from state law “will produce inconsistent and discriminatory results” when dealing with a pole attachment dispute because the statute of limitations varies by state, said the American Public Power Association and National Rural Electric Cooperative Association. Barring refunds during the period before a good faith notice of a dispute "prevents ILECs from abusing the pole attachment complaint process," they said. APPA and NRECA declined to comment now.

The petition “makes a pretty good case that some mechanism might be appropriate to limit electric utility refund liability for disputes,” emailed NARUC General Counsel Brad Ramsay. Comments "likely provide a basis for understanding if EEI’s proposal to 'limit refunds for any period preceding good faith notice of a dispute' is the optimum solution," Ramsay said.

A coalition of utility companies backing the petition, including Arizona Public Service, Eversource Energy, Exelon, National Grid and NorthWestern Energy, argued that the prospects are "alarming" because the statute of limitations could be anywhere from three to 10 years for electric utility pole owners as a result of the FCC's November ruling.

Telecom groups want the commission to dismiss the petition, saying it already acted on the issues raised by EEI. An NCTA spokesperson directed us to the group's comments, which said EEI is instead seeking "a different rule that would achieve what it views as a less discriminatory result." NCTA sought a declaratory ruling on pole replacements in 2020, which the FCC declined to act on (see 2101190027). A USTelecom spokesperson also directed us to its comments, which argued the petition should be dismissed on procedural grounds because the commission "already rejected the petition's policy proposals" (see 2108240079).