Duke’s Challenges to FCC Pole Attachment Order ‘Lack Merit’: USTelecom Amicus Brief

The submitted FCC and AT&T briefs in the 4th U.S. Circuit Appeals Court review of the commission’s Nov. 18 pole attachment order (see 2307070013) “ably demonstrate” that Duke Energy’s challenges to the order “lack merit,” said USTelecom’s 4th U.S. Circuit Appeals Court amicus brief Thursday in support of the FCC and in opposition to Duke. The commission’s order found the pole attachment rates Duke was charging AT&T were unjust and unreasonable.

Duke is “precluded” from challenging the FCC’s authority to regulate the pole attachment rates that utilities charge incumbent local phone companies, said USTelecom’s brief. “Duke’s parent company made the same arguments more than a decade ago in the D.C. Circuit, where it lost,” it said: “Issue preclusion therefore bars Duke from re-litigating that loss here.”

Even if Duke could raise its challenge “anew,” Section 224’s “plain language and structure” make clear that all phone companies, including incumbent local phone companies, “are entitled to just and reasonable pole attachment rates,” said USTelecom’s brief. Duke’s arguments “attempt to rewrite the statute and provide no basis to create a circuit split,” it said.

Duke can’t shift to AT&T or other incumbent local phone companies “the cost of the 40 inches of safety space required because Duke’s wires transmitting high-voltage electricity are inherently dangerous,” said USTelecom’s brief. Incumbent local phone companies’ attachments “are nowhere near the safety space,” it said. Duke admits it can’t charge other attachers, located higher on the pole, and therefore closer to the safety space, for that space, it said. The FCC’s “longstanding conclusion” that utilities must bear those costs “is sound,” it said.

The FCC’s Nov. 18 order “accords with” the Enforcement Bureau’s 2015 memorandum opinion and order in Verizon Florida v. Florida Power & Light, said USTelecom’s brief. Though a bureau decision, like that in Verizon Florida, doesn’t “bind” the FCC -- so Duke’s claim of an inconsistency fails at the outset -- the commission “nonetheless applied the same standard here” that the bureau did there, it said. The outcome is different because the FCC “found the facts are,” it said.