Backed by the Justice Department, the FCC has told a federal court it knew what it was doing when it deregulated pole attachments, and had the authority to do it.
That came in a brief responding to the lawsuit filed by utility companies last October. DOJ Antitrust Chief Makan Delrahim was also on the brief, signaling Justice agreed the FCC had the legal authority.
"Petitioners, a group of electric utility companies, contend that some of the Commission’s new rules are unlawful," the FCC and Justice told the U.S. Court of Appeals for the Ninth Circuit. "To the contrary, the challenged rules, which expanded on previous reforms, reflected a reasonable and carefully considered exercise of the agency’s authority.... Accordingly, the Court should reject petitioners’ claims and uphold the Order."
The FCC voted in August 2018 (unanimously, though with one partial dissent) to adopt various reforms related to new broadband attachments on utility poles.
The utilities challenged its authority to undertake for of those reforms: 1. The decision not to hold new attachers responsible for the costs of correcting preexisting violations by other attachers; 2. the decision to allow utilities to require advance notice of overlashing; 3. allowing attachers to help themselves if utilities missed deadlines for completing surveys and make-ready work; 4. and the FCC's rebuttable presumption that incumbent local exchange carriers are similarly situated to "telecommunications attachers" (including cable operators).
The FCC said it reasonably exercised its authority in doing all that.
In its brief, the FCC also pointed out that numerous commenters had told it that delays in pole attachments were deterring them from deploying broadband (which the FCC is under pressure from the White House, Congress and its own recognition of the digital divide, to promote).