Sen. Capito urges FCC action on broadband utility pole access

In a letter to the Federal Communications Commission (FCC) last week West Virginia Senator Shelley Moore Capito asked the Commission to take action on a long-standing proceeding which could change the way broadband providers access utility poles.

Capito said she continues to hear “problems and delays” associated with broadband providers getting access to utility poles. Broadband networks are dependent on access to utility poles, especially in rural parts of the country where infrastructure often cannot be buried underground given difficult terrain.  

According to the senator, reasonable access to poles is currently obstructed by a number of factors, including workforce shortages and pole owners that want to offer broadband services of their own and receive funding from federal broadband programs. Capito also pointed to “inconsistent policies that allow pole access by owners are keeping some broadband networks from being built.”

“The State Broadband Office has noted that these issues are unnecessarily draining the resources of broadband providers, as it has documented massive increases in rates sought by pole owners compared to those from just a few years ago,” she wrote, and the FCC taking action in a years-long pole attachment proceeding is “an important first step.”

In July 2020, the NCTA — The Internet & Television Association petitioned the FCC to clarify the rules for cost sharing between pole owners (incumbent pole owners are generally utility companies and phone companies) and those wanting to attach their facilities to the poles. 

“In particular, the NCTA requested that the Commission clarify that in unserved areas, it is unjust and unreasonable for pole owners to shift all pole replacement costs to new attachers,” New Street Research (NSR) policy analyst Blair Levin noted.

“Pole attachment rules have long been debated and enforced at the FCC, going back at least as far as the battles that led to the Pole Attachment law of 1978,” Levin told Fierce Telecom this week. “In short, either for economic and for competitive reasons, the pole owners always have an incentive to make attaching to their poles more expensive and take more time.”

In 2021, the FCC declined to act on the NCTA’s petition, deciding that it is "more appropriate to address questions concerning the allocation of pole replacement costs within the context of a rulemaking, which provides the Commission with greater flexibility to tailor regulatory solutions.”

In her letter to the FCC, Capito said that if the Commission doesn’t act on establishing “a fair sharing of pole replacement cost with an expedited process for resolving disputes,” providers will likely miss deadlines and timelines for network construction and deployment plans, despite the deployment of significant federal investment like the $42.5 billion in the Broadband Equity, Access and Deployment (BEAD) program.

As the original FCC proceeding was started over three years ago, “the record is complete and the time is right for the Commission to act in a unanimous fashion,” she said. “The Commission’s actions related to reasonable and timely pole access sets an important precedent, even for pole owners not subject to the Commission's jurisdiction and in states that have adopted their own pole attachment rules.”

Indeed, some states do have different rules than others. For example, Massachusetts policymakers were recently encouraged to adopt a protocol that would simplify the process for deploying new broadband infrastructure. The state is the only one in New England that doesn’t have a so-called One Touch Make Ready (OTMR) protocol in place.

Since the FCC declined to act on the NCTA’s 2020 petition, “the cable industry, and Charter in particular, have been urging the FCC to adopt new rules governing how investor-owned utilities provide access to their poles and charge for the access,” said Levin, though he noted that rural co-ops enjoy a specific exemption from the Pole Attachment Act of 1978.

The FCC began a formal proceeding in March 2022 seeking input on resolving disputes over costs for pole replacements. Levin said that notice included language “largely consistent with the positions advocated by the cable industry.”

However, the FCC has yet to provide further guidance.

Most recently, Comcast told the Commission this summer that utility pole owners are causing delays that jeopardize federally funded broadband projects that must be completed on short schedules.