Federal regulators will decide whether Colorado's
largest electrical utility can slap cable operators with a $250-per-pole penalty for
unauthorized pole attachments.
In a setback for Public Service Co. of Colorado, the
Federal Communications Commission's Cable Services Bureau upheld a
Tele-Communications Inc. filing in which the MSO argued that it's up to the FCC to
determine what constitutes fair pole-attachment rates.
The ruling was a blow to PSC, which was seeking damages
from TCI in a Colorado District Court over unauthorized attachments to its electrical
poles in the state.
The utility had asked the court to determine that the
matter was a contractual issue and, therefore, that it was outside of the FCC's
However, further damaging PSC, the court dismissed that
action, ruling that the federal Pole Attachment Act was originally enacted to prevent
utilities from dictating "the terms and conditions of contracts" involving cable
In the case of TCI, PSC was seeking damages under a new
company policy that imposes a $250-per-pole penalty on Colorado cable operators that are
found to have unauthorized pole attachments.
TCI objected on the grounds that the new fee was
"unreasonable" because most utilities limit such penalties to between $15 and
$25 per pole, said Wes Heppler, an attorney with Washington, D.C.-based firm Cole, Raywid
In addition, after announcing the new policy, PSC audited
its electrical poles in Colorado, but it has refused to detail how it reached its final
numbers concerning TCI, Heppler said.
"Obviously, we're not satisfied with the number
that they came up with," Heppler added, noting only that the final figure was in
However, sources indicated that PSC wanted to collect $6
million from TCI for an estimated 24,000 unauthorized attachments.
Lisa Lett, PSC's associate general counsel, said the
utility plans to appeal the court decision to the Colorado Court of Appeals.
"The way we look at it, it's a breach-of-contract
case," Lett said.
The utility is also weighing its options at the FCC, Lett
said, and it may ask the full commission to review the CSB decision.
Heppler said the dismissal of PSC's lawsuit means that
the FCC, and not the courts, will decide the merits of PSC's new $250
PSC officials were not available for comment last week.
Heppler said the FCC decision also benefits cable by
determining that operators can wait until a utility tries to impose an onerous
pole-attachment fee, rather then having to run straight to the agency when it's first
"Otherwise, the minute a cable operator got a new
contract with a utility, he would have to go in and say, 'I think these 19 things are
wrong,'" he said. "The FCC would be absolutely flooded."