FCC Invites Comment on Pole Attachment Issues Related to 5G

The wireless industry continues to push for almost tariff-like regulation of communications attachments on utility poles. Despite prior statements by the FCC favoring negotiated agreements, the wireless industry is now asking the FCC to prohibit a utility pole owner from even attempting to reach a negotiated agreement, ironically stifling the potential for mutually-beneficial arrangements that could further expedite wireless deployments.

CTIA, the national association representing wireless carriers, recently filed a “Petition for Declaratory Ruling” in which it is asking the FCC to further tighten existing rules and policies on (1) state and local regulation of antenna structures, and (2) wireless access to utility poles. The FCC has combined CTIA’s petition and a similar petition from the Wireless Infrastructure Association (“WIA”) into a new docket (WT Docket No. 19-250). Both petitions seek to further limit state and local regulation of antenna structures, but CTIA’s petition also asks the FCC to address pole attachment issues under Section 224 of the Communications Act.

CTIA asks the FCC to adopt the following policies on pole attachments:

1.   Utility-owned light poles should be made subject to mandatory access and regulated rates under Section 224. CTIA argues that light poles will be needed for installation of small antenna systems, particularly in areas where utilities are underground. Even though the FCC determined many years ago that light poles are not part of a utility’s electric distribution system and are therefore not subject to Section 224, CTIA simply argues that they are “poles,” they are owned by a utility, and they are needed for 5G deployment.
2.   Utilities should not be allowed to impose blanket prohibitions on wireless access to any portion of their poles. CTIA argues that some utilities prohibit wireless carriers from attaching ancillary equipment on lower portions of the pole, in the “unusable space” below the communications space. CTIA argues that a utility must separately justify each denial of access to any portion of any pole on the basis of capacity, safety, reliability, or engineering purposes.
3.   Utilities should not be allowed to ask for any terms that conflict with the FCC’s pole attachment rules. CTIA argues that even though the FCC has encouraged parties to negotiate in good faith over the terms in a pole attachment agreement, utilities try to “water down or sidestep” the FCC’s requirements through negotiations. CTIA therefore argues that the FCC should prohibit utilities from even requesting different terms.

CTIA’s position on negotiated pole attachment agreements is contrary to the FCC’s recent statements to the effect that the parties may negotiate terms that vary from the rules if they are part of a quid pro quo exchange between the utility and the attaching entity. Under CTIA’s proposal, even if a utility and attaching entity negotiated a reasonable quid pro quo exchange, the FCC could strike the utility’s benefit from the bargain without regard to any concessions given by the utility as part of the negotiated agreement. The result will be cookie-cutter agreements with no ability for parties to enter creative or mutually-beneficial agreements; essentially, the use of a tariffing-type process.

The FCC is inviting comment on the petitions filed by CTIA and WIA by October 15, 2019, with Reply Comments due October 30, 2019. Please let us know if you have any questions about these issues or would like assistance in expressing your views to the FCC.