After a lengthy hiatus of more than a decade following Office of Management and Budget (“OMB”) review of several provisions in the FCC’s pole attachment complaint rules having information collection requirements, including rules placing obligations on certain cable television operators and pole owners, the Commission earlier this week published notices making those rules effective. In 1998 and 2000, the Commission modified its pole attachment regulations to require, among other things, that cable operators notify pole owners upon commencing to offer telecommunications services and that pole owners and other utilities, within 30 days of a request from a telecommunications carrier or cable operator, provide information to support a rate, term, or condition for attachment to or occupation of a pole, duct, conduit, or other right-of-way of the pole owner or utility.
As set forth in notes buried in the Code of Federal Regulations, these rules were not effective pending approval by OMB, to be followed by notice from the FCC of that approval. The Commission’s publications in the Federal Register on August 26 and August 27, 2013, now make these rule provisions immediately effective and enforceable.
As a practical matter, many industry participants may have proceeded as though these rules were already in effect or may have had analogous contractual obligations, but the rules’ formal effectiveness gives them teeth backed by potential enforcement before or by the Commission. Recent changes to the FCC pole attachment rate formulas that were upheld earlier this year brought the attachment rates for telecommunications carriers closer to those of cable operators under certain conditions, but in many circumstances there can still be a considerable difference in the two rates. For this reason, the National Cable and Telecommunications Association ("NCTA") brought a petition for reconsideration, which is still pending, in an attempt to bring the telecommunications carrier rate down to the cable operator rate in virtually all situations. Until that happens, if ever, where a cable operator is also providing telecommunications it will often be relevant whether the offering meets the definition of “telecommunications services,” both with regard to the rate paid and whether notice to the pole owner is required. Many cable operators may already be under a contractual obligation to notify pole owners when they begin to provide telecommunications services, but the Commission’s August 27 announcement now makes notice an effective obligation under the rules with attendant potential enforcement ramifications.
Similarly, this week’s Federal Register notices make formally effective rules not only regarding the content of complaints regarding pole attachments and access to other rights of way, which parties have been using as a guideline for more than a decade, but also the regulatory obligation of pole owners to make available information, upon request, regarding rates, terms, and conditions. More to the point, the now effective third sentence of Rule 1.1404(j) provides that a utility, within 30 days of receiving a request, must supply a cable television operator or telecommunications carrier information the utility relied upon to establish a rate, term, or condition for attachment to or occupation of the utility’s pole, conduit, duct, or other right-of-way. On its face, this obligation extends not only to annual attachment or conduit fees but charges for make ready and other non-recurring activities.
Again, as a practical matter many utilities have been in the practice of providing information to attachers regarding their annual attachments fees, but the now formally effective rule may prove another arrow in the quiver of existing and would be attachers questioning the level of any of a utility’s charges.