BEAD Success Hinges on New Fixes to an Old Problem
Now is the time for good-faith, business-to-business negotiations between internet providers and pole owners.
Deborah Lathen
For almost a half-century, communications providers have butted heads with utilities over the right to attach wires to their poles. By the time I took over as Chief of the FCC’s Cable Services Bureau in 1998 under President Bill Clinton, cable was evolving from an analog TV service to a digital “fat pipe” for the nascent internet. This transition required access to utility poles.
Recognizing the monopoly power pole owners exercise, Congress passed the 1978 Pole Attachment Act and the 1996 Telecommunications Act, which required owners to provide pole access to cable and telecommunications providers at reasonable rates. These laws, as implemented by the FCC, reduced barriers to entry and gave rise to the robust video offerings and internet services that consumers enjoy today.
Now, as states get ready to kick off the most ambitious taxpayer-funded rural broadband buildout in history, pole attachment challenges are again rearing their head – and posing a very serious threat to the success of the $42 billion Broadband Equity Access and Deployment program.
Pole attachment laws are patchy at best
As I saw firsthand from my seat at the FCC, pole attachment laws are patchy at best. Rural electric co-ops and municipal utilities are exempted entirely; the FCC has no authority to compel them to share space on their poles with broadband providers. Moreover, half of U.S. states have opted out of FCC pole rules altogether, choosing to instead regulate pole owners under a patchwork of state rules.
Even where pole attachment obligations are clearly spelled out by law, smaller rural utilities may simply lack the capacity and resources to process the BEAD-induced flood of pole attachment requests heading their way. And some larger pole owners – who could easily cooperate – instead choose to hold up projects for leverage until broadband companies (and their customers) agree to pay for long-overdue maintenance and pole replacements.
The bipartisan infrastructure bill’s $42 billion BEAD program is about to force these long-simmering frustrations into a full-on crisis. President Biden touted BEAD as a roadmap to bring high-speed broadband to every American by 2030. But if providers can’t get timely access to rural utility poles, construction permits, and private easements, then they may miss contractually mandated construction deadlines, which in turn may cause forfeiture of part or all of their BEAD grant. Meanwhile, rural Americans still waiting for high-speed internet service will be left to wait even longer.
Pole access squabbles could burn through billions of dollars
Simply put, even $42 billion in taxpayer funding won’t be able to deliver on the Biden-Harris promise of “Internet for All” if pole access squabbles eat up years of time and burn through billions of dollars.
Rural America has waited too long. Now is the time for good-faith, business-to-business negotiations between internet providers and pole owners aimed at expeditiously resolving this decades-old impediment to broadband deployment. All parties lose if this roadblock is not removed—especially rural Americans.
Thankfully, there’s also still time for policymakers to take measures to reduce this risk before BEAD dollars start flowing in earnest next year. The FCC already has an active rulemaking underway looking at this issue. Commissioners should seize this opportunity to set concrete timelines for pole owners to respond to the kind of large-scale pole attachment requests that will be commonplace as BEAD ramps up. Clear rules – with timely enforcement for those who break them – will help give pole owners stronger incentives to play ball in expediting broadband buildouts.
NTIA could help by requiring any rural co-ops and municipal utilities that apply for BEAD funding to agree to follow the FCC’s pole regulations. Better yet, Congress could just eliminate the special interest loophole that exempts municipalities and co-ops from any obligation to let broadband network builders onto their poles, at least for BEAD purposes. States that regulate pole attachments directly should mirror this change, holding all pole owners to the same standard. After all, municipalities and co-ops together own a disproportionate share of the poles in the unserved rural areas BEAD hopes to wire for broadband.
Without these basic reforms, the billions of dollars that lawmakers have already committed to rural broadband just won’t produce the promised results. Policymakers can’t let BEAD’s potential for progress and opportunity crumble into a cautionary tale of failure and waste.
Deborah Lathen is a telecommunications and media regulatory expert and the former Chief of the FCC’s Cable Services Bureau (now the Media Bureau). This Expert Opinion is exclusive to Broadband Breakfast.
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