Court Upholds FCC's Pole Attachment Rule Changes

D.C. Federal Appeals Court Says Commission Sufficiently Justified Change in Policy

The U.S. Court of Appeals for the D.C. Circuit Tuesday upheld the FCC's pole attachment rate order, finding utility company arguments against the decision without merit.

It also found that the FCC, in changing decades old policy on pole attachments, had justified the standard--set in the recent Fox indecency case--for justifying its change in policy.

"As the Commission has met Fox’s modest demands for changing its policy, upholding its decision follows ineluctably," said Judge Stephen williams writing for the court.

“The court’s decision to affirm the FCC’s pole attachment order is a win for American consumers," said National Cable & Telecommunications Association President Michael Powell. "By reducing the cost of attaching equipment and wires to utility poles, the changes adopted by the Commission in 2011 will help promote the deployment of broadband and telecommunications networks by cable operators and other providers.”

"We are pleased that the Court upheld the Commission’s order," said an FCC spokesman, "which is one of a number of important actions the Commission has taken to reduce barriers to broadband deployment and accelerate billions of dollars of investment in 21st century infrastructure."

The FCC in July 2011 had voted to reform its pole attachment rules as another way to promote broadband deployment. That incluced lowering rates utility pole owners can charge for telecom service (as much as $20 per foot per year) to about the same as the cable rate of about $7 per foot per year. The FCC also voted to boost wireless access to poles and setting a deadline for utility companies to allow attachments.

American Electric Power Service, one of utilities facing reduced payments under the FCC reform, filed suit, arguing the FCC had erred in lowering rates utility pole owners can charge for telecom service.

But cable operators had told the court in filings in support of the FCC that the FCC was within its authority to lower the telecom rate, which at closer to the cable rate still compensates utility companies, they said, particularly on top of one-time payments pole users must also make to connect to the poles. They also pointed out that basing payments on service classifications is potentially dicey since "the formal classification of many services in the Internet age can be unpredictable, fiercely contested, and disconnected from the commercial realities of today's marketplace."