UTC Supports Utility Petition Seeking Supreme Court Review of Pole Attachment Case

 

WASHINGTON– A federal court gave the Federal Communications Commission too much deference by upholding an order on pole attachments that exceeds the agency’s authority and harms electric utility consumers, the Utilities Technology Council said.

In a friend of the court brief to the U.S. Supreme Court, UTC said the Commission’s decision to adopt so-called “cost allocators” for pole attachments subsidizes telecommunications service providers by preventing utilities from recovering the cost of pole attachments, as provided under Section 224(e) of the Communications Act of 1934. Although the FCC claims this policy will expand broadband throughout the country, in practice this has not been the case.

“[T]his policy rationale is not supported by the record or in practice; and in any event, detrimentally impacts utilities and electric ratepayers…,” UTC said.

The Utilities Technology Council is the international trade association advocating for the telecommunications and information technology interests of electric, gas and water utilities and other critical infrastructure industries. Its members include utilities of all sizes and ownership structures ranging from large investor-owned utilities serving millions of customers across multiple states to smaller rural cooperative and public power utilities that may serve only a few thousand customers.

At issue is the FCC’s 2015 decision to implement cost allocators for creating a single rate for attaching telecommunications equipment to utility poles (pole attachments). The Commission developed this policy as a means to expand broadband throughout the U.S., determining that by lowering the cost of attaching equipment to poles, telecommunications service providers would then be encouraged to bring broadband services to unserved and underserved parts of the country.

After the U.S. Circuit Court for the Eighth Circuit upheld the decision last year, several electric utilities have asked the Supreme Court to take up the case. UTC, in its filing today, supports this effort.

The Eighth Circuit erred by granting the Commission too much deference and discretion. Rather than address the arguments that the FCC’s policies run counter to congressional intent and essentially subsidize telecommunications firms, the Eighth Circuit simply deferred to the agency’s interpretation of its own authority and did not address or even analyze the question of whether the cost allocators were just and reasonable, UTC said.

This is particularly problematic, UTC told the Supreme Court, because since the FCC began reducing the telecommunications pole-attachment rates, broadband providers have consistently failed to provide access to broadband on a reasonable and timely basis, the FCC has concluded in every one of its broadband progress reports. According to its most recent progress report, “the FCC has found that a persistent digital divide has left approximately 40 percent of the people living in rural areas and on Tribal Lands without access to broadband,” UTC said.

In fact, UTC said, “it appears that providers have simply pocketed the profits and worse, refrained from deploying broadband in unserved areas.”

About UTC
The Utilities Technology Council (UTC) is a global trade association dedicated to serving critical infrastructure providers. Through advocacy, education and collaboration, UTC creates a favorable business, regulatory and technology environment for our members who own or operate Information and Communication Technology (ICT) systems in support of their core business. For more information: UTC.org