The wireless and tower industries are making a strong push at the Federal Communications Commission to reform the pole-attachment regulatory regime. The parties claim that non-discriminatory and equitable access to utility poles on a nationwide uniform basis will hold the promise of fostering the yet-unrealized emergence of a wireless third pipe to compete against the landline telephone-cable TV broadband duopoly.
Pole attachments pale in comparison to other, sexier broadband and wireless issues, but the FCC’s re-examination of pole attachment rules could prove highly controversial just the same. The mobile-phone and tower sectors appear particularly well poised to argue from a position of strength in the commission’s rulemaking, given language in the 1996 telecom act, a 1998 FCC decision and a 2002 Supreme Court ruling. To varying degrees, those actions help to expand the scope of utility-controlled facilities (duct, conduit and right-of-way) subject to access at just and reasonable terms and conditions. In addition, the rulings made cellular operators eligible to attach their gear to such facilities at a rate no worse than other telecom carriers. Pole attachment policy was first set by Congress in 1978. Lawmakers subsequently modified the law in 1994 and, then again, two years later.
“DAS [distributed antenna systems] are sometimes the only way that mobile voice, data and broadband can be provided in certain areas. Thus, they are crucial to the national policy goals of expanding access to these services,” the DAS Forum, a membership unit of wireless infrastructure group PCIA, told the FCC. “Currently, wireless carriers attempting to deploy DAS networks face unreasonable discrimination in rates and terms that result in unnecessary delay for the deployment of DAS networks. The commission should amend its rules to clarify wireless network operators’ rights to reasonable rates and terms for pole attachments, particularly for DAS networks.”
Carriers want clarity
Cellular industry association CTIA said the government needs to spell out obligations of pole owners in no uncertain terms.
“Wireless service providers are clearly protected under the umbrella of federal regulation, yet electric utility pole owners choose not to recognize wireless attachers’ rights of way,” CTIA stated. The association said the FCC should clarify that the telecommunications rate formula for pole attachments applies to wireless, with an explicit presumption of that right. CTIA also wants federal regulators to specify that ‘usable space’ includes the top of utility poles.
RF concerns
CTIA also urged the commission to pre-empt electric utility pole owners from denying pole access to wireless carriers due to concerns over radio-frequency radiation emissions and other safety issues, saying government regulations and other guidelines already address such matters.
T-Mobile USA Inc. said the FCC should approve a wireless-specific rate formula for pole attachments and a single rate for attachments associated with broadband access service. Indeed, the FCC has tentatively concluded to do the latter. The No. 4 mobile-phone carrier claimed utilities effectively deny access to poles and assess exorbitant charges by unfairly ‘tying’ fees for distribution pole attachments to high and unregulated rates utilities charge for access to interstate transmission towers.
To remedy delays faced by mobile-phone carriers in negotiating pole attachments, T-Mobile USA recommended that “pole owners should have to post pole attachment information and a standard attachment agreement on their Web sites, as well as be required to state specific reasons for rejecting an attachment request.”
Moreover, T-Mobile USA said the FCC should initiate a fast-track docket specifically to address pole-attachment complaints.
Dilemma for big 2
The pole-attachment debate presents a dilemma of sorts for the mobile-phone industry, since the two largest wireless carriers – AT&T Mobility and Verizon Wireless – are owned by the dominant landline telephone companies.
The pole attachment issue is tricky as a well for emerging wireless broadband carriers. The Supreme Court and the FCC have yet to address head-on the question of whether wireless broadband data-only service providers, particularly those not subject to mobile-phone common carrier rules, should be afforded the same pole attachment rights as telecommunications carriers.
The Wireless Communications Association International strongly believes its members qualify for even-handed treatment on pole attachments, given the obstacles faced by service providers and the fact they, unlike cellular carriers, provide wireless broadband as a primary service.
“This proceeding provides the commission with an excellent opportunity fully examine the effectiveness of its pole-attachment rules for all facilities-based providers of broadband service and fashion remedies for inequitable utility practices that, if not addressed proactively, may deny consumers the well-established benefits nascent wireless broadband service providers are poised to deliver,” stated WCA.
Regulation of pole attachment is subject to dual jurisdiction. Eighteen states and the District of Columbia oversee pole attachments, while the remaining states are subject to FCC rules.
