AT&T Backs Away From Safety Issue in BPL Pole Attachment Settlement
AT&T backtracked from safety issues that it raised in obtaining a temporary order from a Tex. court restraining BPL operator Current Communications from attaching equipment to its poles (CD Nov 22 p2), a BPL official said. Current took the dispute to the PUC but settled with AT&T last week. The PUC dismissed the case Tues. at Current’s and AT&T’s requests. A PUC ruling would have clarified jurisdictional issues for states like Tex. that haven’t adopted pole attachment rules, BPL officials said.
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“AT&T was raising safety concerns about putting [BPL equipment up their poles and it turns out there was really no issue to begin with,” said the BPL official. The attachments were “completely within code,” and AT&T has dropped them as a reason for the dispute and is focusing on contract issues in the settlement, he said. “We backed away a little bit from the safety issue,” acknowledged an AT&T spokesman. Part of the problem in AT&T’s raising safety concerns, he said, was that the company didn’t know “exactly where or what” Current was deploying. Eighteen states and D.C. have asserted jurisdiction on pole attachment issues.
Pole attachment jurisdiction is “confused,” lawyer Nicholas Miller said. Federal law regulates the terms of pole attachments under Sec. 224, he said, but it covers only price. It doesn’t deal with safety violations and day-to-day operating procedures, he added. The FCC has adopted rules on rates and rate mechanisms but has never dealt with safety and operational standards of poles, Miller said. State PUCs have “very comprehensive” jurisdiction over all facilities placed by regulated entities, he said: “So whether or not there [are] explicit pole attachment provisions, most PUCs would take the view that they have jurisdiction to resolve disputes.”
That the FCC hasn’t adopted safety rules doesn’t mean it couldn’t step in to resolve a dispute, Miller said. If the FCC decided a company was using safety as an excuse to prevent pole attachment, it could step in as it did in the over-the-air antenna reception devices (OTARD) case, he added. In that case, the FCC said a landlord can assert a safety concern, but it’s the FCC’s decision whether there’s a safety issue, he said: “So that’s very clearly not driven by safety. It’s driven by the Commission’s commitment to get competition out there.” Miller said the FCC would have authority under Sec. 224 if it chose to assert it.
Pole safety usually is covered by PUC rules, lawyer Tim Lay said. There’s no federal safety standard, he added. FCC has jurisdiction over compensation and access, he said. The PUCs usually adopt standards agreed to by business, he said, and those standards aren’t uniform across the country. The federal pole attachment law doesn’t concern RF interference to telecom services from devices attached to poles, he said. Municipal utilities are immune from the federal pole attachment act, he said: “It does not apply to them at all.” But states can enact laws to make municipal utilities subject to the federal law, he added.