Who knew that state sovereignty and urging states’ rights meant prompting federal agencies to bring about change at the local level? That seems to be happening in the field of pole attachment regulation.
Section 224 of the Communications Act empowers the FCC to regulate the rates, terms, and conditions of attachments on poles owned by investor-owned utilities and phone companies. Section 224, however, permits states to “reverse preempt” federal authority and regulate attachments on their own upon filing a certification with the FCC of their intent to do so. But before taking that step, a state’s legislature typically passes a law that authorizes the state public utility commission to regulate pole attachments. To date, 24 states (including the District of Columbia) have certified state-level regulatory jurisdiction over rates, terms, and conditions for pole attachments.
But as the federal and state governments (not to mention private industry) are investing billions of dollars to expand broadband services to rural and unserved parts of the country, lawmakers from several certified and uncertified states have turned back to the FCC for support.
On May 1, 2023, U.S. Senator Ron Johnson of Wisconsin (a state that defers to FCC jurisdiction for poles owned by investor-owned utilities and incumbent phone companies) wrote FCC Chairwoman Jessica Rosenworcel, urging the Commission to “prioritize issuing a final rule to set clear standards on cost sharing of upgrades and replacements to utility poles.” Senator Johnson said he was “disappointed” that the FCC had not yet issued a final rule on pole replacement costs, but said he was “hopeful that such action will ensure reliable internet access to under- and unserved areas of Wisconsin as promptly and efficiently as possible.”
On May 15, 2023, Chairwoman Rosenworcel responded to Senator Johnson, agreeing “that the Commission should be doing everything it can to speed the deployment of broadband to all areas of the country and that ensuring there is a transparent, fair, and fast pole attachment process that considers the needs of pole owners and attachers is a key part of that effort.” Chairwoman Rosenworcel pointed to the FCC’s current rulemaking where it is reviewing how to allocate pole replacement costs between pole owners and attachers.
Senator Johnson’s correspondence with the Chairwoman echoed a similar exchange just a few months ago with U.S. Senator Tammy Baldwin, who also requested the Commission “move expeditiously to clarify” its pole attachment rules, including those related to cost allocation of pole replacements. Senator Baldwin, like Senator Johnson, stressed that “[b]roadband deployment frequently relies on attachments to utility poles in order to reach unserved, often rural communities in Wisconsin.” Chairwoman Rosenworcel offered the same response to Senator Baldwin as she did to Senator Johnson.
Chairwoman Rosenworcel also corresponded not so long ago with U.S. Senator Shelley Moore Capito of West Virginia (a state that took back pole attachment regulation from the FCC in 2019), who had written to the FCC to highlight what the senator described as “outdated regulations” that “stand in the way” of broadband expansion in that state. Senator Capito said that Americans in rural areas need “swift action on broadband buildout solutions.”
In her response to Senator Capito, Chairwoman Rosenworcel dutifully acknowledged that “state efforts are often informed by changes [made] at the federal level,” and said the Commission was “always willing” to engage with state counterparts regarding pole attachment rules and processes. However, as Chairwoman Rosenworcel also observed, in 2019, the West Virginia legislature passed a law that led to that state’s pole attachment regulation certification. Despite West Virginia’s decision to regulate poles itself, the West Virginia Public Service Commission, subsequently adopted rules that largely mirrored the FCC’s, including any “subsequent modifications or additions” that the FCC’s rules might undergo. In adopting the rules, the West Virginia PSC commented that the state legislature’s charge “could not be more clear” – reverse preemption of pole attachment regulation was to be achieved by adopting the FCC’s regulatory scheme.
West Virginia’s regulations for pole attachments are therefore not merely “informed” by changes at the federal level, but are, in fact, entirely dependent upon action from Congress and the FCC.
Ohio, like West Virginia, is also a “certified” state with detailed rules governing pole attachment rates, terms, and conditions developed over several decades of regulation. And yet last year, three Ohio Congressmen wrote the FCC, urging it to take swift action in reforming its pole attachment rules. U.S. Representative Troy Balderson wrote Chairwoman Rosenworcel that changes in the FCC’s pole attachment rules “should ensure more timely access to poles through standardized permitting timelines and prioritized pole attachment disputes, and guarantee more equitable distribution of costs between broadband providers and pole owners.” Similarly, U.S. Representatives Mike Carey and David Joyce expressed support for the FCC’s proposed rules on processing of attaching and replacing poles, which they described as “common sense reforms that promote fair and timely access to poles.”
Chairwoman Rosenworcel wrote back to the three Ohio Congressman stating that Commission staff is still reviewing the record in the pole attachment rulemaking proceeding, but the FCC fully understands that “[g]aining access to poles in a quick, predictable, and affordable way can help speed the deployment of broadband infrastructure, including, . . . in rural areas of the country.”
The Sheppard Mullin communications infrastructure team continues to monitor changes in pole attachment regulation and oversight at the federal and state levels. If you have any questions about any of these developments, please contact a Sheppard Mullin communications attorney.