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
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."