ILECs to Get Chance to Challenge Rates in Draft FCC Pole Attachment Order
ILECs will get a chance to pursue “just and reasonable” pole attachment rates through the Telecom Act’s Section 224 complain provisions under a draft order that commissioners will take up next week, agency officials said. Chairman Julius Genachowski’s staff is still revising the order and it may well change, but a draft circulated earlier this month (CD March 9 p5) would lower CLEC rates to that of cable companies and let ILECs pursue lower rates through the complaint process. Genachowski and his staff are thought to be worried about the public relations implications of the order, FCC officials said. Utility companies have accused the commission of bailing out ILECs in the draft order, and the accusations have given Genachowski and staff pause, agency officials said.
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The order doesn’t contemplate awarding compensatory damages to pole owners for attachment violations, even though last year’s rulemaking considered damages, an FCC official said. Genachowski’s spokesman declined to comment. Genachowski and his aides seem to be continuing to consider how to include ILECs in the draft order, so that in at least some cases incumbents can pay the lower rate, that other telcos also would under the existing draft, to utilities when leasing space on their poles, said cable lawyers watching the proceeding. Also said to be getting eighth-floor attention is whether providers of all types of communication services, such as VoIP and maybe even wireless, should be able to get the telecom rate.
Parties on all sides have lobbied furiously in recent days, and there were a parcel of ex parte meetings on Wednesday and Thursday as sunshine rules were about to set in, a commission official said. Utility companies have accused the commission of ignoring their concerns, and one of their lawyers said Thursday that a court challenge of the order was likely. “We doubt the electric utility industry and its ratepayers will sit idly by if the FCC ignores the statutory CLEC rate on the one hand and invents statutory authority to regulate ILEC attachments on the other,” Keller and Heckman telco lawyer Jack Richards said. “If the rumors are true and the FCC lowers the CLEC attachment rate to the same level as the cable rate, I can’t wait to see the legal rationale. It’s got to be a doozy.” Tom Magee, of the same firm, said that “ILECs already receive a ton of joint-use benefits not available to cable and CLEC attachers. That’s just, and it’s reasonable, even if the FCC had statutory authority over ILEC attachments, which it doesn’t."
Cable operators generally will be less affected by the order on pole attachments than telcos, because the draft doesn’t change the rate that the operators pay utilities, industry officials said. They said that with discussion on the order at the commission largely focused on how and whether to incorporate ILECs in the telecom rate and what sort of services, provided by any company, that should be eligible, cable issues have not been in the forefront. Of interest to an attacher from any industry is how the commission will rule on what penalties utilities can force attachers to pay, when they afix gear to poles without permission, cable lawyers said. They noted that there’s already a way for utilities to penalize those who make unathorized attachments. NCTA and some of its members have told FCC officials that additional penalties beyond what utilities now can charge companies aren’t needed (CD March 31 p19).