Pennsylvania May Be First State in Years to Reverse Pre-empt FCC on Pole Attachments
PHILADELPHIA -- Pennsylvania may reverse pre-empt the FCC for pole attachment authority, an option for states not taken for nearly a decade. Public Utility Commissioners voted 5-0 for a motion by Commissioner Norman Kennard to open a rulemaking that surprised some. Earlier Thursday, FCC Commissioner Brendan Carr told the Above Ground Level (AGL) Summit in Philadelphia the FCC may learn from state small-cells bills as the federal agency weighs action to lower state and local barriers to 5G deployment.
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Pennsylvania follows federal pole attachment rules, as do 29 other states, said an FCC document from May 2010 announcing Arkansas certifying its authority. “I propose that our regulations on pole attachment be a complete and unqualified adoption of the federal pole rules,” said Kennard. “This preserves the status quo with respect to the rules governing poles and does not impose new requirements on any pole owner.” The PUC “has the opportunity to bring its expertise and adjudicatory resources to bear on this important issue,” and “provide just and timely resolution of these matters,” the commissioner said.
The PUC announced the motion one day earlier, in a meeting agenda. Commissioner David Sweet said he has “been made aware that there’s some consternation among parties that might be affected by this action, that this emanated rather quickly.” He said there will be much time to respond. “This is just the commencement of a rulemaking,” the “due process rights of everybody involved are excruciatingly lengthy,” and “everyone will have a chance to not only have notice, but a right to be heard and a right to make comment,” he said. Sweet lauded Kennard for “planting a flag in the ground.”
“All states have the right to exercise reverse federal preemption over pole attachment rules,” emailed Crown Castle Vice President-Legal Monica Gambino. CTIA didn’t comment.
Pennsylvania's move surprised some. “I thought all the states that were going to reverse preempt did so some time ago,” emailed Sherry Lichtenberg, National Regulatory Research Institute telecom principal.
"How can this be a surprise?" emailed NARUC General Counsel Brad Ramsay. "If you are involved in any infrastructure discussions these days ... one topic near the top of any telecom sector participant’s list -- discussed both in in Washington and in State capitols across the country -- is how to facilitate broadband access -- and in particular 5G wireless services." Kennard's motion puts the regulator in control when there are pole access disputes, he said. The decision followed a federal court last week reversing the PUC’s 3-2 ruling that distributed antenna systems operators aren’t utilities requiring state certification (see 1806080061).
Carr in Philadelphia
Carr sees “potentially a lot of common ground” between state small-cells laws and possible FCC actions to remove local impediments to deployment, he said. “At a minimum, it’s a piece of what we draw on for good ideas on reforms in this space.”
Carr referenced the Philadelphia 76ers’ call to “trust the process” as he explained why he wants to remove regulatory red tape that may hold back 5G deployments. The commissioner is “working through these issues” on how to lower state and local barriers, said Carr, later referring to impediments as “outlier conduct.” Cutting costs of deploying small cells means more money companies can spend in other areas, he said.
States and localities “expect and deserve to be compensated,” but governments shouldn’t view deployments as revenue-generating opportunities, Carr said. Shot clocks and local reviews should serve their intended purposes and the FCC should give more certainty about right-of-way access and its views on local moratoria, he said: Longer local reviews were OK for previous wireless generations, but 5G is a “very, very different deployment” in terms of “costs and timelines you can absorb going through whether it’s the federal or the state’s process.”
The FCC heard at length from tribal groups protesting the agency’s March small-cells order (see 1806060039), Carr said: Starting in 2016, the commission had “the most comprehensive outreach effort that the commission has done with tribal communities on these types of issues,” including “dozens of consultations.” The meetings “impacted me,” and changed the final decision, he said.
Carr hopes to “develop a relationship” with incoming FCC Commissioner Geoffrey Starks, he said. Carr was a “big fan” of then-Commissioner Mignon Clyburn, with the pair talking even on contentious issues, he said, and he wants the same with other commissioners: “At a minimum, let’s talk to each other.” Carr’s own nomination for a second term awaits a Senate vote, he said. “I welcome the chance to continue serving.”