FCC Opens Utility and Telephone Poles to Google

By Russell Frisby

The Federal Communications Commission has finally released its long awaited Open Internet Report and Order on Remand, Declaratory Ruling, and Order establishing a new policy on the status of broadband Internet access service (BIAS).

In the Order, the FCC reversed its previous policy and found that BIAS is in fact a telecommunications service subject to its jurisdiction. The Commission went on to impose various rules prohibiting the blocking and throttling of internet traffic as well as paid prioritization. In response to the criticism that it was imposing unnecessary regulation on the internet, the FCC also adopted a "light-touch regulatory framework" using its authority under Section 10 of the Communications Act to forbear or refrain from imposing on broadband service providers various statutory and regulatory provisions including its authority over ratemaking.

However, as requested by Google, the Commission specifically chose not to apply Section 224 of the Act—governing the regulation of pole attachments—to BIAS. In particular, section 224 requires utilities (including electric, gas and water utilities as well as local exchange carriers) to provide cable system operators and telecommunications carriers the right of “nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled” by a utility.

It stated that access by broadband service providers such as Google to poles and other infrastructure was especially crucial to the efficient deployment of communications networks by such new entrants. The FCC ruled that applying these provisions would help ensure just and reasonable rates for BIAS by continuing pole access and thereby limiting the input costs that broadband providers otherwise would need to incur.

The Commission went on to find that leveling the pole attachment playing field for new entrants that offer solely broadband services also removed barriers to deployment of BIAS and will promote greater broadband competition. These requirements do not apply cooperatives because they are exempted from section 224.

In the Order, the Commission found that it has no authority under Section 10 to forbear from enforcing Section 224's provisions as they applied to non-telecommunications carriers such as energy and water utilities. Moreover, it stated that such forbearance would seemingly eliminate any requirements governing the rates pole owners’ can charge telecommunications carriers or cable operators for access to their poles and that such an outcome would not serve the public interest.

The Commission also indicated that pole owners should not read the order as giving them a green light to increase the pole attachment rates paid by cable companies providing BIAS. It specifically cautioned "utilities against relying on this decision to that end." It further stated that this "Order does not itself require any party to increase the pole attachment rates it charges attachers providing broadband Internet access service, and we would consider such outcomes unacceptable as a policy matter."

For more information on the FCC’s BIAS order or to discuss how this order will impact your company’s business, please contact Russell Frisby, William Gotlieb, William Syverson or your usual Stinson Leonard Street LLP attorney.

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