By Paul Ciampoli
APPA News Director
Posted on August 3, 2018
The American Public Power Association is voicing opposition to legislation that would effectively repeal the public power exemption from Federal Communications Commission (FCC) pole attachment regulations.
The Association said that the bill essentially would impose a “one-size-fits-all” approach to pole attachment rates and regulations that may ultimately require public power utility customers to subsidize infrastructure deployment of for-profit communications providers.
At issue is S. 3157, which is sponsored by Sens. John Thune, R-S.D., and Brian Schatz, D-HI.
Under Section 224 of the Communications Act, which is the only section in the Communications Act related to electric utility infrastructure, public power utilities are explicitly exempt from FCC pole attachment regulation because pole attachments on public power utility poles are already subject to state or local regulations that are designed according to local need.
The exemption reflects Congress’ understanding that consumer-owned public power utilities have no incentive to block communications services that benefit their communities. The section also allows states to regulate electric utility poles within its boundaries if it chooses to do so. Currently, twenty states plus the District of Columbia have “reverse preempted” FCC pole attachment regulations to set their own standards.
The Thune-Schatz bill, the STREAMLINE Small Cell Deployment Act, would revise section 332 of the Communications Act to require mandatory access for attachments to a “facility in a right-of-way (ROW) owned or managed by the state or local government.” Currently, Section 332 gives the FCC authority over the provision of “wireless services,” and it does not provide for FCC jurisdiction over electric utility poles.
The bill would also require the state or locality to charge fees for the placement, construction, or modification of a small personal wireless facility that is calculated “in accordance with section 224” of the Communications Act if placed “on a pole…or any other facility that may be established under that section.”
Because utility pole attachments are the only type of facility covered under section 224, and because public power utility poles are the only types of utility poles owned or managed by states or local governments and located in the public ROW, this language would require all public power utilities to charge the FCC pole attachment rate for all public power utility poles that are in the ROW. It would also create significant ambiguity in the law that would leave room for the FCC to assert jurisdiction over public power utility poles despite the explicit exemption for those utilities.
The Association said that taken together, the provisions would, in effect, repeal the public power exemption from FCC regulation and make the state reverse-preemption authority for pole attachments practically meaningless.
Bill would impose “one-size-fits-all” approach
The Association noted that public power utilities support deployment of all types of broadband technology that will benefit the communities they serve and are willing to work with industry to facilitate wireless attachments.
But the problem with S. 3157 is that it would effectively impose a “one-size-fits-all” approach to pole attachment rates and regulations and would ignore legitimate concerns related to the placement of small cells on public power utility poles, the Association argued.
It pointed out that safely accommodating wireless attachments on utility poles is much more complex than accommodating traditional horizontal wireline attachments. For example, small cells are often placed above the electric line and may create lineworker safety issues. The Association also highlighted significant engineering considerations unique to public power utility poles, such as loading, clearance, and interference, that must be taken into account to protect electric reliability for the communities served by public power.
PMC members highlighted opposition to S. 3157
Members of the Association’s Policy Makers Council recently emphasized public power’s opposition to S. 3157 in meetings with lawmakers and staff while in Washington, D.C. The PMC meets twice a year in Washington, D.C., and visits with elected representatives and congressional staff on issues critical to public power.