Infrastructure Providers May Challenge Maine Pole Attachments Order
Level 3 and ExteNet threatened to sue the Maine Public Utilities Commission over pole-attachment licensing requirements they deem too burdensome. Commissioners voted 3-0 Friday to amend pole attachment rules as directed by the legislature (see 1712060035). The order in docket 2017-00247 didn’t streamline certification for Level 3 and ExteNet, declined state lawmakers’ pleas for prescriptive rules and refused local governments’ requests for free access to poles for municipal broadband. The commission agreed to CLECs' and lawmakers' requests to apply to all pole riders “Oxford rules” that the state’s biggest ILEC opposed. Oxford rules include the right to attach equipment below an ILEC’s facilities when higher space isn’t available.
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Level 3 and ExteNet "were very disappointed and dismayed to see that their comments and proposed rule language regarding Section 3’s licensing requirements for new attachers was neither discussed nor apparently even considered,” they wrote in a Monday letter. “While they recognize their only formal remedy may be to seek judicial review of the new rule pursuant to Section 8508 of the Maine Administrative Procedures Act,” Level 3 and ExteNet “request that their issues concerning the Section 3 licensing requirement be addressed in the upcoming rulemaking proceeding regarding pole attachment rates.”
Pole attachment certification will be too burdensome for companies with experience attaching in states other than Maine, the infrastructure companies said. The PUC previously granted other certificates to Level 3 entities, they said. ExteNet has no Maine certificates, but the wireless antenna attacher should get a streamlined registration process since it received no complaints in other states, the companies said.
The commission said it couldn’t write prescriptive pole-attachment rules even though it would have preferred that approach, noting most commenters -- including sponsors of the bill directing the changes -- sought prescriptive rules. The law was “plain and unambiguous” in seeking presumptive rules requiring the agency to hold a hearing or receive complaint before ordering joint use of utility infrastructure, the PUC said. “The Commission expects, however, that these rules will become de facto prescriptive in that parties, knowing the rules the Commission will apply in any dispute, will follow the rules as a matter of course.”
The PUC declined to give municipalities “unfettered, free-of-charge access to joint-use utility poles for any competitive services such as the provision of Internet service or Internet infrastructure.” While “laudable” for municipalities to seek to fill broadband gaps or provide affordable options, the commission agreed with FairPoint and other industry commenters arguing that municipal provision of middle-mile access is “in direct competition with other commercial entities that provide these services.”
The commission agreed to apply Oxford rules to all pole attachers. Oxford rules were written 10 years ago for pole attachments of CLEC Oxford Networks, now owned by FirstLight Fiber, and resulted from a dispute between Oxford and Verizon Maine, later FairPoint.
It was "most essential" to have Oxford rules to drive broadband across the state, said Maine Rep. Seth Berry (D) in an interview. Berry sponsored the House bill directing the changes. Berry wants prescriptive rules, and he's "optimistic that the intent of the commission is to make them de facto prescriptive." Berry wants to revisit the municipal broadband issue in the legislature, he said.
The Maine Municipal Association is disappointed, said MMA Legislative Advocate Garrett Corbin. "Our member municipal officials have a hard time understanding why local property taxpayers should have to pay to install public infrastructure within their own municipality’s right of way. Municipalities are only installing broadband infrastructure because private providers have not been meeting the needs of residents and businesses in many areas to access reliable internet in a timely or affordable manner."
The decision pleased FirstLight and two other Maine CLECs seeking Oxford rules for all. “This has brought Maine into the forefront regarding pole attachment policy,” said Preti Flaherty attorney Joseph Donahue. Consolidated Communications, which acquired FairPoint last year, is reviewing the Maine PUC order, a spokeswoman said Tuesday.
The PUC next will propose changes related to pole attachment rates and costs, in a rulemaking to come, the agency said.