Michael Santorelli: FCC Pole Ruling Faces Early Test
Whether the FCC enforces its February pole-attachment order against Appalachian Power will decide if BEAD produces ribbon cuttings or recriminations.
In February, the Federal Communications Commission issued what Chairman Brendan Carr called a “first-of-its-kind” unanimous ruling intended to address one of the most stubborn obstacles to bringing broadband to rural America: efficient access to electric utility poles.
In a nutshell, the Commission held that utility pole owners can’t make an ISP wishing to attach broadband facilities to a pole pay to fix pre-existing safety or structural violations as a condition of the accessing their poles. With ISPs ready to deploy fiber on millions of poles as part of the $42.5 billion Broadband Equity, Access, and Deployment program, the ruling looked like a major step forward for connecting rural America.
Three months in, the Order is already being tested.
The dispute that produced this important ruling originated in Virginia and involved Comcast, a major national broadband provider, and Appalachian Power, a major investor-owned electric utility (IOU) in the state. These parties are back in front of the FCC after Comcast accused Appalachian Power of again overbilling it for pole replacement costs and otherwise not abiding by the terms of the FCC’s February Order (Appalachian Power has not yet responded to these allegations).
This continued back-and-forth is inefficient and puts time-sensitive projects like those funded under BEAD at risk. As with all agencies, the challenge for the FCC is ensuring that its rulings are respected and followed by the parties. The question is whether the FCC will act expeditiously to enforce its precedent.
This dispute implicates more than what’s happening in Virginia between Comcast and Appalachian Power. How the FCC responds to this latest dispute will shape how electric utilities nationwide allocate pole replacement costs.
It is essential that the issues Comcast raised be resolved quickly and clearly to provide legal certainty for both pole owners and broadband providers; without prompt enforcement and clarification, prolonged disputes will multiply transaction costs, delay billions in federally funded deployments, and slow progress toward universal broadband—leaving rural communities waiting longer for high-speed service.
The scale of the pole-access challenge is significant. An analysis from the Advanced Communications Law and Policy Institute at New York Law School, where I serve as director, estimates BEAD-funded fiber could touch nearly four million electric utility poles nationwide, and pole-replacement costs alone could range from $240 million to $2.85 billion depending on assumptions. Roughly 44% of BEAD’s aerial deployment will cross investor-owned utility territory and 40% will traverse electric cooperative territory, where federal pole rules do not currently apply. That makes the outcome of this Virginia dispute a national question: it could determine whether BEAD projects finish on time and on budget, or face widespread delays, higher costs, and prolonged uncertainty that slow progress toward universal broadband.
The Comcast/Appalachian Power dispute is also a test-case of whether we can fix these kinds of issues nationally. Settling this dispute quickly will provide clarity to the parties and to the industry generally, which is critical given NTIA’s decision to extend the FCC’s pole rules to cover poles owned by utilities of all ilk – IOU, municipal, and cooperative – that are participating in BEAD. Without such certainty and consistency, there could be many more such disputes before the Commission in the near future.
Reforms are only worth the paper they are printed on unless they are applied in the real world and materially change how the physical work gets done. The FCC has reformed on paper. Speedy resolution of the ongoing dispute between Comcast and Appalachian Power will tell us whether that reform changes anything in the field. If the agency moves fast and firmly, BEAD has a real shot at producing ribbon cuttings instead of recriminations.
Michael Santorelli is the Director of the Advanced Communications Law & Policy Institute (ACLP) at New York Law School. This Expert Opinion is exclusive to Broadband Breakfast.
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