On July 29, 2020, the Wireline Competition Bureau (“Bureau”) released a Declaratory Ruling (the “Ruling”) in response to CTIA’s Petition for Declaratory Ruling which sought clarification on the 2018 Wireline Infrastructure Order. The Ruling clarifies that:
- the imposition of a “blanket ban” on pole access does not satisfy section 1.1403(b)’s specificity requirement and is therefore not permitted under the Commission’s rules; and
- while utilities and attachers have the flexibility to negotiate terms in their pole attachment agreements that differ from the requirements in the Commission’s rules, a utility cannot use its significant negotiating leverage to require an attacher to give up rights to which the attacher is entitled under the rules without the attacher obtaining a corresponding benefit.
With respect to blanket bans, the Bureau clarifies that utilities cannot impose categorical bans on pole access without providing a reason for denying access specific to the pole or attachment in question. The Bureau also clarifies that the blanket bans on access to the pole top, unusable space, or any other section of the pole are not permissible under the Commission’s rules. The Bureau explains that utilities can deny pole access in a particular instance on a nondiscriminatory basis “where there is insufficient capacity, and for reasons of safety, reliability, and generally applicable engineering purposes,” but must exercise such discretion consistent with the specificity requirement. The Bureau reiterates that merely citing or referencing a construction standard to justify a denial of access is insufficient to comply with the specificity requirement because not every construction standard is necessary to ensure safety, reliability, or proper engineering, and denials based construction standards must still document why the attachment poses such a risk.
In response to CTIA’s request to prohibit utilities from seeking terms that conflict with the Commission’s pole attachment rules, the Bureau clarifies that parties may negotiate “superior solutions” deviating from the Commission’s rules as long as the deviations are mutually beneficial. The Bureau agrees that there is unequal bargaining power between utilities and attachers, but the negotiation flexibility to reach a mutually beneficial solution as well as other rules like the “sign and sue” rule, which allows an attacher to file a complaint after signing an agreement to challenge the lawfulness of a provision, were put in place to protect attachers. The Bureau, therefore, clarifies that attachers must receive some benefit, other than the right to attach to poles, in exchange for agreeing to deviations from the Commission’s rules that benefit utilities.
The Bureau does not grant CTIA’s request for an outright prohibition of contract terms that conflict with the Commission’s pole attachment rules, explaining that doing so would go against FCC precedent that favors privately-negotiated solutions, and further that the negotiation of pole attachment agreements does not lend itself to a “one size fits all” approach.
The Ruling is effective upon today’s release.
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