Fixing the Fixes for Pole Attachments

By Michael O’Rielly

 

Fights over pole attachments — obtaining access and avoiding outrageous rates — have proven to be a serious roadblock to broadband providers trying to build networks to the unserved in our nation.  That’s not just my analysis after listening to enraged parties but the result of numerous public stories and examples from providers.  In fact, the Federal Communications Commission (FCC or the agency) has accumulated an extensively full record after years of taking complaints by those trying to facilitate service to those Americans without.  Similarly, the Commission, which plans to take action next week on a pending item, stated in its draft that, “Key to these broadband projects are the utility poles that support the wires and wireless equipment that carry broadband to American homes and businesses.”  And West Virginia’s State Broadband Office leadership, for example, has publicly declared that reaching pole attachment agreements is the biggest source of delay in deploying federal broadband funding.  Given this, it’s a bit surprising that the Commission seems to be pulling its punches on obvious steps to use its pole attachment authority in ways that would expedite and expand builds.

 

Make no mistake, providing a clearer and cleaner fix to pole attachment disagreements, no matter however reserved the agency may be, is a good thing and deserves praise.  But like all difficult policy calls at the FCC, if you are going to take the criticism, why not do the right thing, if authorized to do so?  Certainly, the Commission didn’t hesitate to push the envelope beyond recognition on the so-called Net Neutrality and Digital Discrimination items — despite the legitimate concerns raised, massive harms identified, and strong opposition presented, including from me.  So why hold back on pole attachments when resolving open issues would do so much good?   

 

Here are just a few areas the Commission could and should have gone further. 

• Bulk Pole Requests — The Commission has an arbitrary threshold of 3,000 poles and fewer for defined processing timelines and getting relief under its make-ready and other Commission procedural remedies.  Yet anyone seeking to build broadband networks in sparsely populated, large areas often seeks more than this threshold.  What do they get under the Commission’s item? Bunk, with the whole issue shoved to the Further Notice and faint language that the agency expects all parties to act in good faith.  If there is a recognition that requests for a number of pole attachments below the threshold deserve regulatory engagement, what logical reasons can be provided to punt on a key matter with an untimed promise of someday, just maybe the agency could possibly consider resolution?Everyone knows Further Notices come with a lower expectation of completion. The only justification I can come up with is the belief that big requests for poles tend to come from larger companies and thus these entities have some leverage in negotiations with pole owners.  Yet, most often the pole owners have absolutely no incentive to strike a deal, especially if the request is made from a larger broadband provider.  Arguably, smaller providers getting run over by pole owners can make a compelling press story.  Few people seem to cry foul over a larger provider being taken to the cleaners by pole owners, even if these same owners are trying to become a broadband competitor.  This is more frustrating if the goal of universal broadband coverage is to be truly supported.  Can a broadband provider break up larger requests into smaller bites below 3,000 to qualify for Commission action or can they at least get help for the first 3,000 poles under Commission procedures?  I don’t see why not.  At a minimum, the Commission could set a hard deadline (e.g., 6 months) for resolving this portion of the Further Notice.  While it should be fixed in the Report and Order portion, it could provide more certainty that some positive decision will be forthcoming, especially as federal, state and local broadband deployment funding is used to support large scale broadband buildouts involving thousands and thousands of poles.
• Cost Allocation for Replacing Filled Poles — Under the current pole attachment regime, replacing filled poles to respond to new requests heavily rests with the pole owner.  But who gets to pay for a replacement pole? The new broadband provider seeking access, of course.  Yet it’s the pole owner who gets great benefit with an updated asset for free. How is that for fair or even justifiable?  If a pole truly needs to be replaced to address new capacity requests, the costs should be shared. Without crafting a sustainable fix, broadband providers can see their pole costs explode, making builds completely uneconomical.  While the proposed order provides some clarity on the allocation of costs around “red tagged” poles, the Commission has left a gaping hole around how to fairly allocate costs for pole replacement in many other situations.  The likely result of the proposed order is that the broadband provider costs will continue to balloon making it difficult to reach unserved communities. If the Commission is not going to directly resolve this reoccurring problem, shouldn’t it at least add it to the Further Notice with the relevant questions and necessary presumptions?  
• Burden for Replacement Poles — On a related matter, pole owners are given too much latitude to determine whether a replacement pole is needed.  Why is that?  They often have a perverted interest in forcing broadband provider to pay to upgrade its physical poles. Shouldn’t there be some basic threshold burden on pole owners before declaring a pole needing replacement, and therefore passing the bill to the new attacher?  If the attacher is not the reason for replacement, why in God’s name should owner not pay for it?  Assuming proper burdens here would be good policy. Yet, despite the industry ask to do so, nothing made it into the item. Huh.

 

This represents just three segments of pole attachment fights demanding added attention and positive resolution.  There are many more.  And don’t get me started on the exemption in current law for certain poles being governed by longstanding FCC procedures.  At least in that case, the Commission may have a legit reason to withhold action — even if Congress does not. 

 

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For the last 20 or so years, almost every policymaker I know has sought greater broadband availability.  Some go as far as calling broadband a necessity on par with water and food.  But in the tedious process to make this a reality, somehow the requisite nerve turns to caution. Although not easy, improving the FCC’s pole attachment structure is critical. Doing so in a way that maximizes broadband buildout — like the three edits I and others have suggested — would go a long way to making broadband universal. 

* As always, nothing in this document is intended to influence or advocate for actions before the staff at the Federal Communications Commission. These views are raised publicly for general discourse.