Tackling Pole Attachment Issues

In January the new FCC Commissioner Ajit Pai announced the formation of a new federal advisory committee  – the Broadband Deployment Advisory Committee (BDAC). This new group has broken into sub-groups to examine various ways that the deployment of broadband could be made easier.

I spoke last week to the Sub-Committee for Competitive Access to Broadband Infrastructure, i.e. poles and conduits. This group might have the hardest task of all because getting access to poles has remained one of the most challenging tasks of launching a new broadband network. Most of the issues raised by a panel of experts at the latest meeting of this committee are nearly the same issues that have been discussed since the 1996 Telecommunications Act that gave telecom competitors access to this infrastructure.

Here are some of the issues that still make it difficult for anybody to get onto poles. Each of these is a short synopsis of an issue, but pages could be written about the more detailed specifics involved each of these topics:

Paperwork and Processes. It can be excruciatingly slow to get onto poles for a fiber overbuilder, and time is money. There are processes and paperwork thrown at a new attacher that often seem to be done for no other reason than to slow down the process. This can be further acerbated when the pole owner (such as AT&T) is going to compete with the new attacher, giving the owner incentives to slow-roll the process as has been done in several cities with Google Fiber.

Cooperation Among Parties. Even if the paperwork needed to get onto poles isn’t a barrier, one of the biggest delays in the process of getting onto poles can be the requirement to coordinate with all of the existing attachers on a given pole. If the new work requires any changes to existing attachers they must be notified and they must then give permission for the work to be done. Attachers are not always responsive, particularly when the new attacher will be competing with them.

Who Does the Work? Pole owners or existing attachers often require that a new attacher use a contractor that they approve to make any changes to a pole. Getting into the schedule for these approved contractors can be another source of delay if they are already busy with other work. This process can get further delayed if the pole owner and the existing attachers don’t have the same list of approved contractors. There are also issues in many jurisdictions where the pole owner is bound by contract to only use union workers – not a negative thing, but one more twist that can sometimes slow down the process.

Access Everywhere. There are still a few groups of pole owners that are exempt from having to allow attachers onto their poles. The 1996 Act made an exception for municipalities and rural electric cooperatives for some reason. Most of these exempt pole owners voluntarily work with those that want access to their poles, but there are some that won’t let any telecom competitor on their poles. I know competitive overbuilders who were ready to bring fiber to rural communities only to be denied access by electric cooperatives. In a few cases the overbuilder decided to pay a higher price to bury new fiber, but in others the overbuilder gave up and moved on to other markets.

Equity. A new attacher will often find that much of the work needed to be performed to get onto poles is largely due to previous attachers not following the rules. Unfortunately, the new attacher is still generally on the hook for the full cost of rearranging or replacing poles even if that work is the result of poor construction practices in the past coupled with lax inspection of completed work by pole owners.

Enforcement. Perhaps one of the biggest flaws in the current situation is enforcement. While there are numerous federal and state laws governing the pole attachment process, in most cases there are no remedies other than a protracted lawsuit against a pole owner or against an existing attacher that refuses to cooperate with a new attacher. There is no reasonable and timely remedy to make a recalcitrant pole owner follow the rules.

And enforcement can go the other way. Many of my clients own poles and they often find that somebody has attached to their poles without notifying them or following any of the FCC or state rules, including paying for the attachments. There should be penalties, perhaps including the removal of maverick pole attachments.

Wireless Access. There is a whole new category of pole attachments for wireless devices that raise a whole new set of issues. The existing pole attachment rules were written for those that want to string wires from pole to pole, not for placing devices of various sizes and complexities on existing poles. Further, wireless attachers often want to attach to light poles or traffic signal poles, both for which there are no existing rules.

Solutions. It’s easy to list all of the problems and the Sub-Committee for Competitive Access to Broadband Infrastructure is tasked with suggesting some solutions to these many problems. Most of these problems have plagued the industry for decades and there are no easy fixes for them. Since many of the problems of getting onto poles are with pole or wire owners that won’t comply with the current attachment rules there is no easy fix unless there can be a way to force them to comply. I’ll be interested to see what this group recommends to the FCC. Since the sub-committee contains the many different factions from the industry it will be interesting to see if they can come to a consensus on any issue.

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