Utility Collocation Best Practices for a Successful Implementation Wireless Pole Attachment Issues UTC Telecom 2011 Tuesday, May 10, 2011 Long Beach Convention Center Long Beach, California Shirley S. Fujimoto Fish & Richardson P.C. 1425 K Street, N.W., 11 th Floor Washington, DC 20009 202-626-7754 fujimoto@fr.com
Agenda Overview of Pole Attachments FCC 2011 Pole Attachment Report and Order Right of Access for Wireless Antennas Attachment of New Types of Antennas Timelines and Remedies Available to Attachers Rates Unauthorized Attachments Final Thoughts 2
Overview of Pole Attachments: Section 224 What it Reaches: Investor-owned electric, gas, steam or other public utilities (IOUs) Incumbent Local Exchange Carriers (ILECs) Must own or control poles, ducts, conduits or rights-of-way used, in whole or in part, for any wire communications Wireline and Wireless Attachments Telecommunications Carriers and Cable Television Systems What it Doesn t Reach: Municipal or Cooperatively-owned Utilities Attachments in a state that has certified to FCC that it regulates pole attachments 3
FCC Jurisdiction Over Wireless Attachments: Gulf Power II Supreme Court found that FCC has jurisdiction over rates, terms and conditions for wireless attachments by telecommunications providers (NCTA v. Gulf Power, US Supreme Court 2002). Supreme Court s theory based on statutory language of Section 224 pole attachment means any attachment by a provider of telecommunications service used to provide such service. 4
Wireless Attachments to Transmission Facilities: Gulf Power III FCC does not have jurisdiction over wireless attachments to transmission facilities (Southern Co. v. FCC, 11 th Cir. 2002). Poles, ducts and conduits are regular components of local distribution systems and not interstate transmission systems. Local distribution facilities are covered, regardless of whether used in part for transmission. Omission of towers from definition of pole attachment and reverse preemption provision indicate that Congress did not intend for Pole Attachments Act to regulate attachments on transmission facilities. 5
FCC 2011 Pole Attachment Order Adopted April 7, 2011. Effective Date: 30 days after Federal Register publication (not yet occurred). Does not apply to ducts, conduits, or rights of way. 6
Right of Access For Wireless Attachments Telecommunications providers have a right to pole-top access for wireless attachments. If utility denies access, it must explain the specific capacity, safety, reliability, or engineering concern with respect to specific attachment and specific pole. 7
Attachment of New Types of Wireless Facilities If request involves attachment of facilities that are unfamiliar to utility, engineering protocols and technical standards must be established prior to submission of application. Each utility may establish its own specific application criteria and processes, so long as they are reasonable. A utility s evaluation of new types of equipment must be done on commercially reasonable terms and in a reasonable amount of time. 8
Make-Ready Timelines 4-Stage timeline for utility to allow access for pole attachments (148 days for attachments in communications space and 178 days for wireless pole top antennas). Stage 1: 45 days for survey Stage 2: 14 days for estimate Stage 3: 14 days for attacher acceptance Stage 4: 60-75 days for make-ready for attachments in communications space and 90-105 days for wireless pole-top attachments Timeline applies to requests for attachments of up to lesser of 300 poles or 0.5% of utility s poles in a state. Timelines are not safe harbors, so FCC will expect utilities to meet just and reasonable standard for small or mediumsized requests. 9
Make-Ready Timelines for Large Requests Large requests = up to lesser of 3,000 poles or 5.0% of utility s total poles in a state. Utility may add 15 days to survey period. Utility may add 45 days to make-ready period. If > lesser of 3,000 poles or 5% of utility s poles in a state, subject to good faith negotiation. Multiple requests from single company = one request if filed within 30 days of one another. 10
Utilities Can Stop the Clock Utility can stop the clock during performance of make-ready for good and sufficient cause. May not stop clock for routine or foreseeable events such as repairing damage caused by routine seasonal storms; repositioning existing attachments; bringing poles up to code; alleged lack of resources; or awaiting resolution of regulatory proceeding. Utility must notify requesting entity and other affected attachers. Utility may stop the clock before offering an estimate of charges if no master agreement. 11
Remedy For Failure to Meet Deadlines For Attachments in Communications Space Attachers may use contractors authorized by a utility to perform surveys and make-ready work in the communications space if a utility has failed to perform its obligations within the timelines. A utility must make available and keep up-to-date a reasonably sufficient list of contractors, and attachers must use contractors from that list. Attachers must invite a utility representative to accompany and consult with contractor, and utility may make final decisions on safety, reliability, or generally applicable engineering concerns, subject to right of an attacher to file a complaint. 12
Remedy For Failure to Meet Deadlines For Wireless Attachments Above Communications Space Attachers may file a complaint with the FCC if a utility has failed to perform its obligations within the timelines, but may not use contractors for survey or make-ready work. In complaint case, utility must overcome presumption that access has not been provided on just and reasonable terms and conditions. Remedies may include: mandated access within specified time frame subject to specified rates, terms, and conditions; substitution of existing rates, terms, or conditions; refund of overpayment; and forfeitures. 13
Post Make-Ready Attachment of Wireless Facilities A telecommunications provider may use a contractor to attach a wireless antenna above the communications space and safety space on a pole if it uses a contractor approved by the utility that has proper qualifications. A utility does not have to make available a separate list of contractors, but must be reasonable in approving or disapproving contractors. 14
Wireless Attachment Rates Wireless providers are entitled to same attachment rate formula as other telecommunications providers. Where a wireless attachment requires more than presumptive one-foot of usable space on a pole, a utility may impose a higher fee proportionate to the amount of space actually used on the pole. 15
New Telecom Rate Formula Under first formula, Rate = Space Factor x Cost. Urban areas 1 : Cost = 66 % of fully allocated costs used for purposes of pre-existing telecom rate. Non-urban areas: Cost = 44% of fully allocated costs used for purposes of pre-existing telecom rate. Under second formula, Rate = Space Factor x Net Cost of Bare Pole x (maintenance and administrative carrying charge rate). Excludes capital costs, such as rate of return, depreciation and taxes. 1/ Urbanized service area has 50,000 or higher population. 16
Penalties for Unauthorized Attachments Contract-based penalties for unauthorized attachments based on Oregon PUC model will be presumptively reasonable. Applies only on a prospective basis i.e., to new agreements or amendments to existing agreements, executed after effective date of FCC Order. FCC anticipates that a reasonable pole attachment agreement will also contain provisions that provide notice to attachers, a fair opportunity to remedy violations, and a reasonable process for resolving factual disputes. 17
Winners/Losers Final Thoughts Next Steps 18
Questions & Answers For additional information, please contact: Shirley S. Fujimoto Fish & Richardson P.C. 202-626-7754 fujimoto@fr.com Additional materials on the FCC s pole attachment rules are available on the Fish & Richardson website: http://www.fr.com/files/uploads/attachments/fishrichardsonsummaryfccpoleattachmentorder.pdf http://www.fr.com/files/uploads/attachments//telecom%20group%20pole%20attachment%20referenc e%20page.pdf http://www.fr.com/files/uploads/attachments/telecom_group_pole_attachment_experience_page.pdf Copyright 2011 Fish & Richardson P.C. These materials may be considered advertising for legal services under the laws and rules of professional conduct of the jurisdictions in which we practice. The material contained in this presentation has been gathered by the lawyers at Fish & Richardson P.C. for informational purposes only and is not intended to be legal advice. Transmission is not intended to create and receipt does not establish an attorney client relationship. Legal advice of any nature 19 should be sought from legal counsel. For more information about Fish & Richardson P.C. and our practices, please visit www.fr.com.