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.

Congress and Net Neutrality

Capitol_domeNet neutrality is going to be in limbo for the next few years as the myriad of lawsuits make their way through the courts. I’ve written other blogs looking at this issue and, at least in my opinion, it’s unlikely that the FCC ruling will make it through the courts unscathed. Not only is there a question about if they have the authority to order what they did (I happen to think they do), but the whole process included irregularities compared to the normal FCC process. This was not one of those dockets where the FCC issued an idea, got comments, and then made a decision. There were numerous twists and turns during the process and some changes in thinking at the FCC. The irregularities of the process make the ruling vulnerable to court challenges.

If we had a functional Congress this could all be fixed with a very simple new bill. At the end of the day the FCC’s net neutrality decision boils down to three basic tenets that can all be captured in just over a page of text. It would be easy for Congress to pass a bill that laid forth those same principles and then concluded by giving the FCC the authority to enforce them.

Such a decision would cut through all of the red tape, and a Congressional order doing this would establish the FCC’s clear authority to keep the Internet open. Such a law would avoid the whole mess of Title II and forbearance from old rules that don’t really have anything to do with the Internet. Such a Congressional law could avoid the whole issue of treating ISPs and broadband as a utility.

There were several laws floating around Congress last year that did half of what was needed. They basically said that the Internet needs to be open and that nobody should be able to do things that endanger that openness. But every one of these draft bills had the fatal flaw of not giving the FCC the authority to enforce the net neutrality concept.

The bills that I’ve seen are just window dressing. They would let Congress go on the record as being in favor of net neutrality, without actually having done anything to make net neutrality the law of the land. The net neutrality bills I saw didn’t have any more practical application than the laws that Congress is always passing to celebrate things on a given day. We need net neutrality to be more important than National Friendship Day (August 2).

I don’t normally get too political in the blog, but this is not really a partisan issue. Congress as a whole, both parties, has increasingly gotten in bed with corporations, and those corporations that fund the incredibly expensive process of getting elected and staying in office now have most of the influence on what laws get passed.

And so Congress is loathe to pass a net neutrality bill that is not favored by the large cable companies and telcos that contribute to them. The carriers don’t want to be regulated in any manner (as is probably true of all large companies), and so it’s incredibly unlikely that our Congress, in this current environment, is ever going to establish telecom laws with the teeth needed to make them effective.

There has been talk over the last few years that Congress is working on a new telecom reform law. It certainly is time for one. The last Act was passed in 1996. While that doesn’t sound like very long ago, the telecom world has changed in drastic ways since then. 1996 was the height of AOL being the predominant broadband provider in the country. The broadband technologies of DSL and cable modems were just hitting the markets and there were no broadband customers using them at the time. Businesses thought that a T1 was blazingly fast access to the burgeoning Internet.

So the rules created then could use a fresh look, because many of them are already obsolete. But it seems doubtful that a similar kind of law can be passed today. The Telecommunications Act of 1996 opened up the large telephone companies to competition and they absolutely hated everything about the bill. The 1996 Act also changed a number of rules for cable companies that they did not like.

Today there really isn’t much practical difference between large cable and telephone companies, but we treat them very differently. And now that wireless data is growing, wireless providers should be considered in any new rules. One has to wonder if Congress has the gumption to rein in all of these companies under one set of sensible regulations. My fear is that any new telecom law would do just the opposite and that they would mostly relieve all large companies from being regulated – because corporations seem to be far more in favor right now than people.