Cable keeps pole position

Court ruling prevents utilities from withholding 'reserved' space
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The cable industry won another round in the pole wars when federal judges upheld FCC rules requiring utility companies to lease unused pole space to cable companies.

The rules, issued in 1996, bar utilities from holding capacity in reserve for future use. Instead, reserved space must be offered to cable companies until utilities need to use the space.

"There are no suggestions in the act that utilities enjoy the right to reserve as much space as they wish for as long as they deem necessary," wrote judges for the federal district appeals court in Atlanta June 14.

The court also refused utilities' bid for authority to (1) allow only their own employees and contractors to make attachments and (2) to be absolved of FCC guidelines regarding notification of cable companies and other third-party attachers when poles need modification.

The court also upheld a requirement that utilities grant third-party access to all poles, ducts, conduits or rights-of-way when those facilities are used in part for wire communications services.

Officials for the National Cable & Telecommunications Association praised the ruling. "The court rejected the utilities' numerous schemes to obstruct cable operators' access to utility poles," said NCTA law and regulatory policy chief Daniel Brenner.

Utilities did get some of what they asked. The court struck down an FCC mandate for access to switching stations, substations and other transmission systems used for carrying large quantities of energy over long distances. "The act's coverage," the court said, "was limited to the utilities' local distribution facilities and was not to extend to the general regulation of interstate transmission towers and plant."

The court also ruled that utilities are not obligated to expand pole capacity when there is no room for third-party attachments.

Predicting the rate caps' demise, some utilities attempted to raise monthly per-pole charges from roughly $7 to more than $30.

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