Court Upholds FCC's Pole Attachment Rule Changes

Says commission sufficiently justified change in policy

By John Eggerton -- Broadcasting & Cable, 2/26/2013 12:20:47 PM

The U.S. Court of Appeals for the D.C. Circuit Tuesday upheld the FCC's pole attachment rate order, finding utility company arguments against the decision without merit.

It also found that the FCC, in changing decades old policy on pole attachments, had justified the standard -- set in the recent Fox indecency case -- for justifying its change in policy.

"As the Commission has met Fox's modest demands for changing its policy, upholding its decision follows ineluctably," said Judge Stephen Williams writing for the court.

The FCC in July 2011 had voted to reform its pole attachment rules as another way to promote broadband deployment. That included lowering rates utility pole owners can charge for telecom service (as much as $20 per foot per year) to about the same as the cable rate of about $7 per foot per year. The FCC also voted to boost wireless access to poles and setting a deadline for utility companies to allow attachments.

American Electric Power Service, one of utilities facing reduced payments under the FCC reform, filed suit in the U.S. Court of Appeals for the D.C. Circuit, arguing the FCC had erred in lowering rates utility pole owners can charge for telecom service.

But cable operators had told the court in filings in support of the FCC that the FCC was within its authority to lower the telecom rate, which at closer to the cable rate still compensates utility companies, they said, particularly on top of one-time payments pole users must also make to connect to the poles. They also pointed out that basing payments on service classifications is potentially dicey since "the formal classification of many services in the Internet age can be unpredictable, fiercely contested, and disconnected from the commercial realities of today's marketplace."