FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,242
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varies across the various utility companies that own this key infrastructure. The absence of fixed
timelines and the potential for delay creates uncertainty that deters investment. Second, if a pole owner
does not comply with applicable requirements, the party requesting access may have limited remedies;
because of time constraints, cost, or the need to maintain a working relationship with the pole owner, it
may not wish to pursue the enforcement process. Third, the wide disparity in pole rental rates distorts
service providers' decisions regarding deployment and offering of advanced services. For example,
providers that pay lower pole rates may be deterred from offering services, such as high-capacity links to
wireless towers, that could fall into a separate regulatory category and therefore risk having a higher pole
rental fee apply to the provider's entire network.
4. In section 224 of the Communications Act of 1934, as amended (Act), Congress directed
the Commission to "regulate the rates, terms, and conditions of pole attachments to provide that such
rates, terms, and conditions are just and reasonable, and ... adopt procedures necessary and appropriate
to hear and resolve complaints concerning such rates, terms, and conditions."5 When Congress granted
the Commission authority to regulate pole attachments, it recognized the unique economic characteristics
that shape relationships between pole owners and attachers. Congress concluded that "[o]wing to a
variety of factors, including environmental or zoning restrictions" and the very significant costs of
erecting a separate pole network or entrenching cable underground, "there is often no practical alternative
[for network deployment] except to utilize available space on existing poles."' Congress recognized
further that there is a "local monopoly in ownership or control of poles," observing that, as found by a
Commission staff report, "'public utilities by virtue of their size and exclusive control over access to pole
lines, are unquestionably in a position to extract monopoly rents ... in the form of unreasonably high pole
attachment rates."'7 Given the benefits of pole attachments to minimize "unnecessary and costly
duplication of plant for all pole users," Congress granted the Commission authority to ensure that pole
attachments are provided on just and reasonable rates, terms, and conditions.'
5. In implementing section 224, the Commission historically relied primarily on private
negotiations among pole owners and attachers and, when necessary, case-specific adjudication by the
Commission, to ensure just and reasonable rates, terms, and conditions, rather than adopting
comprehensive access rules. But the Commission's experience during the past 15 years has revealed the
need to establish a more detailed framework to govern the rates, terms and conditions for pole
attachments. The National Broadband Plan found that the cost of deploying a broadband network
depends significantly on the costs that service providers incur to access poles and other infrastructure.9
Specifically, the Plan found that the rate structure is so arcane that there has been near-constant litigation
about the regulatory classification of pole attachers, and also found that the establishment of timelines has
expedited the make-ready process considerably in states where timelines have been implemented.'o
Accordingly, the Commission in the May 2010 Pole Attachment Order and Further Notice sought
comment on a proposed timeline and other concerns regarding pole access. The 2010 Order has
5 47 U.S.C. 224(b)(1).
6 S. Rep. No. 580, 95th Congress, 1st Sess. at 13 (1977) (1977 Senate Report), reprinted in 1978 U.S.C.C.A.N. 109.
SId.; see 47 U.S.C. 224(bX 1), (2).
9OMNIBUS BROADBAND INITIATIVE, FEDERAL COMMUNICATIONS COMMISSION, CONNECTING AMERICA: THE
NATIONAL BROADBAND PLAN 109 (2010), available at http://download.broadband.gov/planlnational-broadband-
pan.pdf (NATIONAL BROADBAND PLAN or PLAN). The Commission also found that make-ready work can be a
significant source of cost and delay in building broadband networks. Id. at 111.
o10 PLAN at 110-lI.
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/414/: accessed November 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.