POLE ATTACHMENT LAW: Where We ve Been, Where We Are, And Where We re Going

Transcription

1 POLE ATTACHMENT LAW: Where We ve Been, Where We Are, And Where We re Going Joint Use Conference 2005 April Wisconsin Dells, WI Christine M. Gill McDermott, Will & Emery LLP th Street NW Washington, DC (202)

2 Timeline Evolution of the Law Section 224 Discussion of Issues What s Ahead Q&A Overview of Topics 2

3 Pole Attachment Timeline 1978* 1996* Pre-1978: No Pole Attachment Jurisdiction Pole Attachment Act Passed FCC Implementation of 1996 Act 1996 Telecommunications Act Passed, Amending Pole Attachments Act Challenges to FCC Rulemakings, Dockets 96-98, 97-98, , in 11 th Cir., DC Cir., U.S. Supreme Court Pole Attachment Responsibility Moves to Enforcement Bureau, Phase in of Telecom Rate Begins Emphasis on Mediation, Negotiation Pole Attachment Complaints 3

4 47 U.S.C. Sec. 224 Scope of the Law What it Reaches: Investor-owned electric, gas, steam or other public utilities ILECs Must own or control poles, ducts, conduits or rights-of-way used, in whole or in part, for any wire communications Telecommunications carriers and Cable systems Wireline and Wireless Attachments What it Doesn t Reach Municipal or Cooperatively-owned utilities Joint Use Arrangements 4

5 47 U.S.C. Sec. 224 What it Covers Mandatory Access New in 1996 Law Rates: Cable Rate Telecom Rate New in 1996 law Other Terms and Conditions Certain Exceptions Apply Utilities May Deny Access For Safety Reliability Generally Applicable Engineering Purposes Insufficient Capacity New in 1996 Law 5

6 Reverse Preemption State Regulation Section 224 (c): The FCC has no jurisdiction over pole attachments where the state has affirmatively certified to the Commission that it regulates the rates, terms and conditions for Pole Attachments 6

7 States that Regulate Alaska California Connecticut Delaware District of Columbia Idaho Illinois Kentucky Louisiana Maine Massachusetts Michigan New Jersey New York Ohio Oregon Utah Vermont Washington 7

8 Sources of Law Federal Statute (Section 224, as amended) Court Decisions FCC Implementing Regulations FCC Complaint Decisions 8

9 Rate Issues Section 224 (b) - Rates must be just and reasonable Section 224 (d) Cable rate Section 224 (e) Telecommunications rate Other Market rate (?) 9

10 Rate Issues Major Rate Issues Decided Since 1996 Constitutionality of Rate Formulas (5 th Amendment Takings) 11 th Circuit Holds Rate Formulas Constitutional Except Perhaps When Poles Are at Full Capacity and there is an Alternate Buyer Standard Being Applied By FCC (Florida Cable Telecom Association v. Gulf Power) FCC Has Jurisdiction Over Rates, Terms & Conditions for Wireless Attachments FCC Has Jurisdiction Over Attachments for Internet Services Provided by Cable Companies 10

11 Rate Issues Threshold Rate Question: What is Status of the Attacher? CATV Telecommunications Other What rate can I charge? Impact of service qualification Cable Operators Must Give Notice When Providing Telecom Services 11

12 Rate Issues Combination Rate Source Formula Cable 224(d) Statute Telecommunications 224(e) Statute Cable/Telecom 224(e) FCC Order Cable/Internet 224(d) Gulf Power II Telecom/Internet Undetermined Undetermined Wireless Undetermined 224(e) 12

13 Rate Issues Rate Formula Issues Raised in Recent Complaint Cases: Proration of Utility FERC Accounts Use of non-ferc Form 1 Data Looking Behind FERC Data Application of the FCC s Attaching Entities Presumptions 13

14 Rate Issues Applying Presumptions for Number of Attaching Entities Ambiguous Language in FCC Rule, Orders 3 Attachers in Non-Urbanized Areas (< 50,000 population) 5 Attachers in Urbanized Areas ( 50,000 population) No Practical Guidance by Agency on Application of Standard 14

15 Major Rate Issues Remaining Treatment of VoIP Services Is it Telecommunications or Information Service or Something Else? How to Calculate Rates for Wireless Attachments Wi-Fi Attachments Just Compensation Broadband Services: DSL/BPL Internet Access 15

16 Overlashing Overlashing May require advance notice of overlashing in pole attachment contracts Attachers need not obtain advance approval May not collect pole attachment fees from third-party attachers Presence of Overlashed cable does not affect rate unless overlashed cable carries telecommunications service where original attachment was cable only 16

17 Transmission Transmission Facilities If any part of the facility (a pole, duct, conduit or right of way) is used for local distribution, it is within the Pole Attachment Act and within the FCC's jurisdiction to regulate. If the electric facility is (1) used solely as a transmission "tower" or an "interstate transmission facility," and (2) regulated by FERC, then it is beyond the FCC's jurisdiction. No agency application of this standard to date 17

18 Make-Ready Make-Ready Survey Costs Construction Costs Third Party Workers Correction of Violations Notice to Other Attachers, Cost Sharing Document Retention Issues justifying expenses, pole history/nesc compliance 18

19 Capacity Expansion Capacity Expansion Utility May Deny Access Based On Lack of Capacity 19

20 Reserve Capacity Utility may only reserve capacity for its core operations pursuant to a bona fide business plan Reserve capacity may be used by attachers until the utility needs to reclaim the space No application of standard by FCC to date Reserve Capacity 20

21 Unauthorized Attachments Unauthorized Attachments Reasonable Penalty Permitted (Five years of back rent, or rental to the date of the last audit, plus interest) Costs for inspections solely to assess the presence of unauthorized attachments may be charged to the attacher 21

22 Conduits Conduits Numerous Pending Agency Level Complaints Addressing Rates, Terms and Conditions for Attachments in Conduits 22

23 Outlook No Statutory Changes Likely Constitutionality Will Continue to be Tested More Make-Ready Issues Will be Litigated New Entities Will Seek Access to Poles at Regulated Rates 23

24 Q & A 24