Back in April, I made an argument in The Washington Times that is so obvious it shouldn’t need making, much less made again: you shouldn’t have to pay to fix someone else’s mess.
The Federal Communications Commission had affirmed that principle in a unanimous February order resolving a pole attachment dispute between Comcast and Appalachian Power Company (APCo). Five months later, APCo apparently still hasn’t gotten the message.
A quick refresher for those who don’t spend their days thinking about utility poles, a group that includes most sensible people. Before a single strand of fiber can reach a rural home, it usually has to hang on a utility pole, many of which are owned by electric utilities like APCo. The FCC has jurisdiction over investor-owned utility poles in states that haven’t opted out of the agency’s regime, which governs the terms and conditions of pole attachments.
When a pole is too old, too short, or riddled with existing safety violations, someone has to pay to replace or upgrade it. The FCC’s February order affirmed a commonsense framework, that is, a broadband provider pays for the costs its attachment actually adds, and nothing more. Sensibly, the broadband provider is not responsible for cleaning up previously existing violations, whether from the pole owner’s own neglect or messes somebody else left behind due to their attachments.
That order was the first case decided under the FCC’s new Rapid Broadband Assessment Team and Accelerated Docket. Start to finish, the case took roughly 60 days, which by Washington standards is warp speed. Credit to the FCC for building a fast lane for resolving deployment disputes and then using it effectively.
Here is the problem. A ruling is only as good as the willingness of companies to follow it and the willingness of the agency to punish those that don’t. By all appearances, APCo is willfully violating the February order, continuing to demand that new attachers pick up at least 20 percent of the tab for brand-new poles and even 100 percent of total pole replacement costs if the party that caused the violation does not pay. Both demands are blatant violations of the FCC’s cost-causation rule. Due to APCo’s intransigence, Comcast recently filed a second complaint with the FCC urging the agency to take enforcement action.
Frustratingly, this is not an isolated case. Other broadband providers are confronting this non-compliance playbook in other states and against other broadband providers. CityNet is facing similar problems in West Virginia and other states. Recently, AT&T filed a complaint against Duke Energy, alleging that the utility overcharged the telecom by multiples of the rate allowed by the FCC. Broadband providers throughout the country have cited pole attachments as a significant barrier to deployment.
These disputes may look like mere corporate spats between large companies. That misses their significance. Markets don’t work without enforceable rules of the road, and pole owners aren’t just typical market participants. They hold natural monopolies on public rights of way. That potential bottleneck to infrastructure is exactly why Congress gave the FCC authority to regulate these utilities’ pole attachment practices. The privileges that come with that natural monopoly position, including guaranteed rates of return, captive customers, and public subsidies, rightfully come with strings attached. Broadband providers, and their future rural customers, depend on access to these rights of way.
Every utility and every broadband builder in the country is watching to see whether the FCC’s February order is binding precedent or just more DC talk. The agency’s response could determine whether we see more compliance around the country or more stonewalling. Ultimately, it could determine whether rural broadband projects succeed or fail.
The agency moved quickly and decided correctly in February. Now comes the harder test: showing that its decisions mean something after the ink dries. The good news is that the Commission has the enforcement tools needed to ratchet up the pressure on APCo.
The Commission has drawn clear lines in its February order. Now it is time to enforce it. Broadband providers, utilities, and families are all watching. The FCC’s next steps can help overcome this key barrier to delivering broadband to rural America.
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