Who Controls Access to Poles?

telephone cablesAT&T has sued the City of Louisville, KY over a recent ordinance that amends the rules about providing access to poles to a carrier that wants to build fiber. Louisville is hoping to attract Google or some other fiber overbuilder to the city.

But there has been no announcement that any such deal is in place. It seems the city is trying to make it more attractive for a fiber overbuilder to come to the city and so they passed an ordinance that allows a new fiber builder relatively fast access to poles. The ordinance gives a new fiber builder the right to rearrange or relocate existing wires on poles if the other wire owners on the poles don’t act to do so within 30 days.

AT&T opposes the measure, and their court case says, “The Ordinance thus purports to permit a third party… to temporarily seize AT&T’s property, and to alter or relocate AT&T’s property, without AT&T’s consent and, in most circumstances, without prior notice to AT&T.” They argue that a new attacher will cause service outages and create other problems with their network.

The real issue at hand in the case is if a City has the right to make rules concerning poles. Today there are basic pole rules issued by the FCC that lays forth the fact that a competitive telecom provider must be given access to existing poles, ducts and conduits. Such rights were provided by the Telecommunications Act of 1996. In reading the FCC rules you might think that a new attacher already has the rights that are being granted by Louisville. The FCC rules allow a new attacher to go ahead and put their wires on poles if the pole owners don’t act quickly enough to process the needed paperwork to allow this.

But the rub comes in when there is not a clear space on an existing pole. There are FCC and national electrical standards that require that there be certain spacing between different kinds of cables on poles, mostly to protect the safety of those that have to work in that space. If you’ve ever looked up at poles much you’ll notice that it’s not unusual for the distances between the different utilities to vary widely from pole to pole, meaning that whoever hung the cables was not paying a lot of attention to the spacing.

In the industry, when there is not enough of a gap to accommodate a new attacher, the existing wire owners have to move their wires to create the needed space. If there is not enough space after such a rearrangement then a new taller pole must be erected and the wires all moved to the new pole. The new attacher is on the hook for all rearrangement costs. This process is called ‘make ready’ work and is one of the major costs of getting onto poles in busy urban environments.

The FCC has granted states the right to make additional rules concerning pole attachments, and many states have done so. This lawsuit asks if a city has the same right to make pole attachment rules as is granted to the states – and so this is basically a jurisdiction issue. It’s the kind of issue that probably is going to have to eventually go to the Supreme Court if the loser of this first suit doesn’t like the court’s answer.

To put all of this into perspective, pole issues have often been one of the biggest problems for new telecom providers. Back in the late 1990s I had one client that wanted to get on about 10,000 poles and was told by the local electric company that they were only willing to process paperwork for about a hundred poles per week. I had another client back in that same time frame that was told by a rural electric company that they just didn’t have the time to process any pole attachment requests.

And as you can imagine, when getting on poles bogs down, a new fiber project also bogs down. This can be extremely costly for the company making the expansion because they will have already begun spending the money to build the new network and they will have a pressing need to start generating revenues to pay for it.

Across the country the conditions of poles vary widely. In some cities the poles are relatively short and they are crammed full of wires. In other cities the poles are taller and do not require much make ready work for a new attacher. But when the poles are not ready for a new attacher this can be a costly and time-consuming process. It’s going to be interesting to see if the courts allow a city to get involved in this issue in the same way that states can.

What’s Wrong with Title II Regulation?

FCC_New_LogoI’ve read a lot of the comments of the big carriers and their associations that explain why Title II regulation is a terrible thing. Today’s blog will discuss some of their bigger complaints.

Rate Regulation. Many commenters say they fear rate regulation, meaning that the FCC could become involved in setting their rates. I can’t see any merit in this argument. The FCC and state commissions have relaxed regulation on telephone service over the years and in many states have deregulated rates. There has never been any rate regulation on competitive telephone companies (CLECs) or VoIP providers who are free to charge anything they want. The FCC also brought cellular voice under Title II in 2007 and there has been no regulation of those rates. Basically the FCC’s philosophy is to let the free market and competition set rates whenever possible and this has been true everywhere in the industry. The FCC only steps in when there is blatant abuse, such as when unscrupulous payphone providers were were billing people many dollars per minute.

I think the real fear of the carriers is having the FCC get involved in disputes of the charges between the large ISPs and companies like Netflix. On that count I think they are right, but that is the whole idea behind net neutrality – to not let carriers use their market power to pick winners and losers among web content providers. This is not exactly rate regulation in the historic sense, but its very likely that under Title II that the FCC will be asked to mediate differences between carriers.

Taxes. Several opponents of Title II have floated the idea that putting Internet service under regulation will mean a whole new host of taxes. At least in the short term that claim has no merit. Congress has been excluding the Internet from taxation for fifteen years and just recently renewed the law that stops states and localities from taxing Internet service. This is not to say that Internet service under Title II will never be taxed, because politicians everywhere are always looking for a new tax base. But the fact that Congress has felt the need to pass and renew this law means that taxing the Internet doesn’t require Title II regulation. States and localities have found ways to tax almost everything over the years and will tax the Internet if Congress allows it, with or without Title II.

There probably is a legitimate concern that Internet service would become subject to the Universal Service Charge. But since that FCC has frozen the size of the USF Fund, any new USF taxes on Internet service would mean lower taxes on other telecom services with no net change in tax to the public. Frankly, since the USF funding is now being used to expand broadband coverage, Internet users ought to help pay for it.

Increased Regulatory Burden. The big companies say that being under Title II will increase regulatory burden. It’s hard to say what exactly that might mean, but they are probably right because regulators like to regulate. Interestingly, the large ISPs make this argument on behalf of small ISPs and not for themselves. And here I thought they didn’t like the small ISPs that compete with them!

Pole Attachments. Cable companies fear that being under Title II will mean an increase in the rates they pay to attach to poles. Apparently today they often get cheaper attachment rates then some regulated companies. I have a hard time sympathizing with this. Cable companies love to raise the issue of level playing field when they have to compete with a municipality. But that same level playing field concept would say that every company that leases space on a pole ought to pay the same rate. They are arguing to maintain an un-level playing field that happens to be in their favor.

Tariffs. Regulated telephone companies, including the CLECs must file tariffs. These documents define the terms and conditions under which the companies will sell service to the public. In the tariff a company must define things like their policies for disconnecting a customer who doesn’t pay their bill. I suspect that many states would use Title II as a reason to impose tariffs on cable companies. And I suspect that cable companies would get dragged into some state laws that require certain levels of customer service. Considering how crappy the cable companies treat the public I suspect the public would be in favor of this.

Uncertainty. The large companies complain that requiring them to be under Title II means many years of uncertainty until all of the consequences of such a ruling are worked out. That is certainly true, but that is not a reason not to not impose net neutrality. There is a huge amount of uncertainty in the cable industry already. I am sure that Google introducing gigabit broadband into their markets, or Dish Networks launching of an OTT product that includes ESPN are causing a lot more uncertainty inside cable boardrooms than concerns about complying with regulatory rules. I really can’t picture cable company Boards spending a lot of time worrying about net neutrality.