After a three-year investigation, the FCC adopted changes to its pole attachment rules at the December 2023 monthly meeting. The new rules will go into effect soon after being published in the federal register. It’s worth noting that these rules don’t apply to everybody. These rules apply to poles owned by investor-owned utilities and telephone companies but not those owned by cooperatives and municipalities. The rules are also only effective in the 27 states that follow FCC pole jurisdiction. Other states with their own pole attachment rules are free to adopt or ignore these changes.

Following are the most notable changes that are included in the new order:

• The FCC is creating a Rapid Response Process to expedite pole attachment disputes. In the states under FCC pole jurisdiction, disagreements over the interpretation or implementation of the rules go to the FCC. Fiber builders have complained that the process takes too long and kills construction projects. This process promises to judge quickly whether the dispute belongs at the FCC and if it is affecting the deployment of broadband in unserved areas. The dispute will either be taken to arbitration or handed to an FCC Administrative Lw Judge to handle in an expedited minitrial.
• The FCC wants to make the pole attachment process more transparent. Pole owners will have ten business days to provide any reports or information about the conditions of its poles to a potential applicant. This would include any internal pole inspection reports, inventories, or other information that describes the condition of poles.

The ideal information would be a GIS inventory that shows details like pole heights, pole age, the number of other attachers currently using each pole, and any existing pole loading studies. This kind of data can greatly speed up the process of determining if somebody wants to use poles. For example, somebody trying to plot a fiber path through a community could use this data to choose a route that uses the most readily available poles. Unfortunately, the FCC is not requiring pole owners to create online or electronic databases of the information, but pole owners must provide all information they have about the conditions of poles.

• In what will be the most hotly contested part of the order, the FCC is modifying the conditions under which a pole attacher has to pay for the full cost of replacing a pole when there is not enough room to add fiber. Under the current pole attachment rules, when a pole replacement is conducted for the benefit of a new attacher, then the new attacher must pick up the full cost.

That’s been a controversial rule, and fiber builders have accused pole attachers of forcing them to pay for poles that already violate safety requirements, or that have already been scheduled internally for upgrade. Attachers say that many pole owners have stopped upgrading poles in the hope that a new attacher will cover the cost of needed upgrades.

The new FCC rules define a new term, ‘red-flagged poles’ to define poles that are already out of safety compliance or that are already scheduled for upgrade or replacement. Under the new rules, a pole attacher would not be responsible for the cost of replacing red-flagged poles. The exception would be when the request from an attacher requires a red-flagged pole replacement to be taller – and then the attacher only pays for the incremental cost of the extra height on the replacement pole.

The FCC also issued a further notice for proposed rulemaking that seeks additional comments on a few other issues. One issue is to consider if utilities can put a size limit on the number of poles that an attacher can apply for. The FCC also wants more comments on whether it should give more leeway to attachers to tackle the work directly when pole attachers don’t meet attachment due dates. Finally, the FCC wants to explore the situation where a pole owner requires the use of a specific contractor to do the work and that contractor is not available – a situation I imagine is common today.

Only time will tell if these new changes will make a practical difference. The new rules only apply to half of the country, and not to all pole owners. The construction process is already in trouble if a new attacher has to go to the FCC to break a logjam with a pole owner, and it’s debatable what expedited resolutions mean.

The FCC isn’t making pole owners compile good pole information, and the rule that they have to disclose internal data isn’t worth much for pole owners that don’t have a good inventory of poles – which is, unfortunately, a lot of them.

I envision a lot of fights over the classification of poles as being red-flagged. Everything in infrastructure is a matter of degree, and what is the precise line between declaring a pole to be out of compliance versus almost out of compliance – I’m sure folks who want to add fiber will quickly find out how pole owners interpret these new rules.