WASHINGTON-A divided federal appeals court in Atlanta ruled wireless carriers and Internet firms do not have the same right as other telecom service providers to access utility poles on a nondiscriminatory basis-an unexpected decision that could hurt mobile-phone antenna siting and the rollout of fixed broadband wireless services.
“We hold that the Federal Communications Commission lacks authority to regulate the placement of wireless equipment on utility poles and attachments for Internet service,” stated the U.S. Court of Appeals for the 11th Circuit in the April 11 majority opinion.
An FCC spokeswoman said agency lawyers are studying the ruling and trying to decide whether to seek a rehearing from the court. The deadline for taking such action is May 25.
In Gulf Power Co. et al. v. the FCC, power utilities challenged the FCC formula for determining pole-attachment rents and related rules. Utility companies claimed FCC regulations amounted to an unlawful taking of property under the Fifth Amendment.
FCC intervention kicks in only when a power utility or telephone company refuses to accept a telecom carrier’s or a cable TV provider’s rent offer for a pole attachment.
Wireless pole attachments was one of several issues raised in the power utilities’ appeal of FCC rules. But it turned out to be the issue that two judges on the three-member appeals court panel addressed with the most vigor.
“What is beyond question is that utility poles are not bottleneck facilities for wireless systems. Because they are not, and because the 1996 act deals with wire and cable attachments to bottleneck facilities, the act does not provide the FCC with authority to regulate wireless carriers,” the court stated.
The specificity with which Congress addressed antenna-siting provisions in the 1996 telecom act, the appeals court added, indicates that lawmakers did not intend in the pole-attachment statute to give the FCC jurisdiction over the placement of wireless carriers’ equipment.
However, Circuit Judge Edward Carnes disagreed. “Once a utility makes its poles available, even `in part,’ for wire communications, it is subject to mandatory access for all pole attachments,” said Carnes. “Nothing about the definition of utility negates the FCC’s mandate to regulate rates for all pole attachments.”
“It’s wrongly decided,”said Michael Altschul, vice president and general counsel of the Cellular Telecommunications Industry Association.
Altschul said the ruling has more potential impact on fixed wireless carriers than on mobile phone operators. Some telecom operators are looking to fixed wireless technology to offer local phone service and broadband Internet service to businesses and residents.
In addition, Altschul said the ruling creates mischief and confusion surrounding the legal status of wireless carriers in terms of telecom act compliance.
Mobile phone and paging operators, for example, could point to the 11th circuit court’s ruling as meaning that they do not have to adhere to common-carrier requirements of the telecom act because they are not telecommunications carriers.
The 11th circuit court’s view that wireless carriers do not enjoy the same nondiscriminatory access to utility poles as other telecom service providers appears to be at odds with the telecom act, though.
The telecom act defines “telecommunications carrier” and “telecommunications service” broad enough as to include commercial wireless carriers. Those classifications carry both benefits and obligations for wireless carriers.
The telecom act’s pole-attachment provisions forbid a public utility from denying a cable TV system or “any telecommunications carrier access to its poles, ducts, conduits or rights-of-way, on a nondiscriminatory basis.” Thus, combining the act’s sweeping telecom carrier definition and the pole-attachment language in the telecom act, wireless carriers would seem to have the same right as others to hang antennas on utility poles.
Metricom Inc., whose Ricochet wireless data infrastructure relies heavily on street light utility poles, did not return a call for comment.
“In our portfolio of cell site placements, we use, to a limited extent, pole attachments,” said Howard Richard, manager of property management for Alltel Corp., a Little Rock, Ark., mobile phone carrier. “Alltel goes for the user-friendly method of tower siting … We just find the best way to get there.”
