Power Companies Criticize FCC over Broadband Plan

The coalition was commenting on separate petitions from the Florida Investor-Owned Electric Utilities and the State Cable Associations and Cable Operations. Each side has asked the FCC to reconsider its order on pole attachments (Docket 07-245). But the utilities coalition also took a shot at the commission’s broadband plan in filings published Tuesday: “The commission’s staff did not even pretend to be objective. … Rarely, if ever, has a commission-sanctioned document been so one-sided as the infrastructure chapter of the National Broadband Plan. It is troubling that the full commission would bootstrap these staff recommendations into new burdens on electric utilities without first obtaining and (unlike the staff) actually considering input from the electric utility industry."

The coalition includes Allegheny Power, Baltimore Gas and Electric, Dayton Power and Light, FirstEnergy, National Grid, NSTAR, PPL Electric Utilities, South Dakota Electric Utilities and Wisconsin Public Service. Coalition attorney Jack Richards told us he thinks power companies may get tougher with the FCC, especially as smart grid technologies bring communications and power companies into contact. “As this settles in and the utilities see how big an impact this will have on their day-to-day decisions … they will become more focused on what’s going on here,” he said.

An FCC spokesman defended the agency’s handling of pole attachments in the National Broadband Plan. “Lowering barriers around pole attachments is key to promoting investment in America’s broadband infrastructure,” he said. “Our pole attachment proceeding includes extensive discussion and input from of all points of view. We look forward to developing pole attachment policies that are fair for all, especially consumers."

At issue is whether the FCC should or even can require power companies to replace with taller poles those that are full of attachments and whether power companies can prevent telecom companies from using space-saving techniques like brackets or boxes (CD May 21 p6).

Utility companies and their associations -- like the Edison Electric Institute, the Florida IOUs, the American Public Power Association (APPA) and the Alliance for Fair Pole Attachment Rules -- argued for limiting the FCC’s authority. They opposed change-out requirements and said nondiscrimination rules shouldn’t apply to utility company wires. They claimed the plain language of the law forbids FCC interference and said they were buttressed by the 11th U.S. Circuit Court of Appeals’ 2002 decision in Southern Co. v. FCC that power companies can refuse telcos’ attachments “where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes.”

The power companies said their opponents aren’t comparing like with like. Electric boxing brackets are “not ‘comparable’ to the use of such techniques to place communications attachments in communications space,” APPA said in its filings. Communications boxes and brackets “can, and often do, impede access to the electric space at the top of the pole, raising significant safety and operational concerns.”

Cable and telcos said in their comments that power companies routinely change their poles when they're over-burdened with attachments. Those supporting a broader FCC role in pole attachments in Tuesday’s filings included Time Warner Cable, the State Cable Associations and Cable Operators, TW Telecom, CTIA and the Distributed Antenna Systems Forum. The companies said they're worried that safety and “insufficient capacity” will become an excuse for power companies to bar attachments as they wish.

Wireless carriers trying to build out their networks using utility poles across the country have run into “utility-imposed roadblocks,” CTIA said. “Because the electric utilities’ petitions advocate further restrictions on their statutory obligation to accommodate new communications attachments on essential infrastructure … CTIA opposes the electric utility petitions.” Restrictions proposed by the utilities “would have a profoundly negative impact on broadband deployment in the United States."

The utility petitions offer no “persuasive evidence” on why the FCC should reconsider its clarification that utility pole owners must allow all telecommunications and cable attachers to use the same attachment techniques as the utility pole owner, the DAS Forum said. “There is no indication the FCC intended to limit the Order to those techniques that the utility or other attacher uses in the communications space,” the group said. “The FCC is clear that once a utility pole owner uses or permits an attachment technique, it triggers a presumption with respect to other attachers using the same technique."

TW Telecom said in its filings that the Southern decision was irrelevant. “In that case the 11th Circuit struck down a rule which required utilities to replace existing poles with taller poles, while the requirement to permit the use of boxing and extension arms involves the ‘utilization of infrastructure, rather than replacing it,'” TW wrote. The FCC has already ruled that the Southern decision only applies in cases where both sides agree that the pole is at capacity.