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News & Press: Legislative

FCC order ignores public power pole attachment exemption

Monday, October 29, 2018   (0 Comments)
Posted by: Kerry Cordray
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A declaratory ruling and order (R&O) made by the Federal Communications Commission (FCC or Commission) in late September could result in FCC pole attachment oversight and regulation of public power utilities, despite the explicit exemption for public power in the Communications Act.


The Sept. 26 R&O includes an FCC interpretation of the Communications Act that paves the way for the FCC to preempt state and local laws or requirements governing access to public rights-of-way (ROW) and publicly-owned infrastructure within the ROW. The interpretation also extends the Commission’s own authority over rates, terms, or conditions of pole attachment agreements.


Along with other public power organizations, the Missouri Public Utility Alliance (MPUA) believes the FCC’s ruling is an overly-broad reading of existing law that ignores the explicit exemption for public power utilities.


“I’m disappointed the FCC may be able to preempt the good work we accomplished with telecommunication providers during last year’s state legislative session,” said Ewell Lawson, Vice President of Government Affairs for MPUA.  “The deployment of wireless services is important, but not at the expense of those paying for other utility services. Wireless providers should pay their own way to deploy for-profit products. I expect this to be challenged in federal court.”


The FCC said the R&O would help remove regulatory barriers that inhibit deployment of 5G and other advanced wireless services infrastructure. The ruling and order uses two sections of the Communications Act, Sections 253 and 332, to preempt state and local laws and requirements. The Commission made it clear that it believes Congress drafted the sections broadly, offering examples of its orders interpreting the provisions broadly in favor of expanded Commission authority.  The FCC said it believes that congressional and FCC decisions point to “consistent federal action…to ensure that our country’s approach to wireless infrastructure deployment promotes buildout of the facilities needed to provide Americans with next-generation services.” 

“The Commission’s actions don’t appear to be about advancing service, but about benefiting wireless service providers,” said Lawson. “Missouri and other states have recently settled this issue, and now because telecommunication providers just want more, the FCC has delivered – at the expense of the local public interest and not-for-profit electric utilities.”


The American Public Power Association (APPA) published an Oct. 23 blog post detailing background to the action, the FCC’s rationale for its decision, potential effects of the order, and APPA’s past comments and reply comments made prior to the FCC decision. The APPA’s online article is available HERE

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