The FCC has asked the U.S. Court of Appeals for the Ninth Circuit (San Francisco) to reject electrical utilities’ appeal of several provisions of the agency’s 2018 pole attachment order best known for adopting a one-touch make-ready (OTMR) policy (TR Daily, Aug. 2, 2018).
Specifically, the American Electric Power Service Corp. and its fellow petitioners had asked the court to overturn provisions in the order relating to (1) preexisting violations, (2) overlashing, (3) self-help when there is undue delay, and (4) attachment rates for incumbent local exchange carriers (ILECs), the FCC noted in its brief filed in coordination with the Justice Department in “America Electric Power Service Corp. et al. v. FCC and U.S.” (case 19-70490).
The utilities’ lawsuit, which was originally filed in the Eleventh Circuit (Atlanta), has been consolidated at the Ninth Circuit with municipalities’ lawsuit challenging provisions in the pole attachment order and the FCC’s small-cell order in the same dockets (TR Daily, Sept. 26, 2018). The two cases, however, are subject to different briefing schedules. The FCC filed its brief in “City of Portland, Oregon, v. FCC” (case 18-72689) earlier this month (TR Daily, Aug. 9).
In the brief, the FCC said, “To prevent electric utilities from imposing exorbitant rates and unreasonable conditions on pole attachers, Congress gave the FCC broad authority to ‘prescribe by rule regulations to carry out the provisions’ of Section 224. 47 U.S.C. § 224(b)(2). The Commission reasonably exercised that authority here. It modified its pole attachment rules to advance an important policy objective: removing obstacles to the swift deployment of broadband services, including wireless 5G services.”
The FCC said that none of the petitioners’ claims has merit.
With respect to preexisting violations, “[t]he record showed that some utilities denied pole access to new attachers until they agreed to fix preexisting violations that they did not cause. To put a stop to this unjust practice, the FCC adopted two rules prohibiting utilities from denying access to attachers and overlashers based on preexisting violations,” it said.
“Although petitioners seek to challenge both rules, their claim regarding 47 C.F.R. § 1.1411(c)(2) is procedurally barred because that argument was not first presented to the agency. See 47 U.S.C. § 405(a). In any event, there is no merit to petitioners’ contention that both rules contravene the ‘plain language’ of Section 224(f)(2). While that provision permits utilities to deny access ‘for reasons of safety,’ id. § 224(f)(2), petitioners are wrong to assume that utilities have ‘unfettered discretion’ to define the scope of Section 224(f)(2),” it added.
As for overlashing, “[p]etitioners contend that the new overlashing rule is inconsistent with Section 224(f)(2) because it ‘appears to permit an overlasher’ to proceed with an overlash ‘despite a documented safety, capacity, reliability or engineering concern.’ Br. 28-29 (emphasis added). Judicial review of this issue is precluded by 47 U.S.C. § 405(a) because no party raised the issue with the Commission. In addition, the claim is not ripe for review. As petitioners concede, the rule does not specify how such disputes are to be resolved, but instead encourages parties to seek solutions through voluntary agreements. Unless and until the FCC adopts a further rule or a concrete dispute materializes, petitioners’ claim is unripe. In any event, the rule simply codifies a policy that the D.C. Circuit upheld as permissible under Section 224,” the FCC said.
With regard to the self-help provision, the FCC said that “[t]he statute’s mandate of nondiscriminatory access necessarily entails the rearrangement of existing pole attachments—including utilities’ own attachments—to accommodate new attachments.”
“Petitioners nonetheless maintain that because Section 224 does not expressly mention electric utilities’ attachments, Congress unambiguously excluded such attachments from the FCC’s purview. Br. 36-38. But statutory silence does not establish unambiguous congressional intent,” it added.
And with respect to the attachment rates, “[p]etitioners assert that the FCC cannot lawfully presume that ILECs are entitled to the Section 224(e) telecom rate because Congress excluded ILECs ‘from the types of entities entitled to the [Section] 224(e) rate formula.’ Br. 52. Petitioners misread the statute. Section 224(e) requires the FCC to adopt a formula for calculating the attachment rates for ‘telecommunications carriers’ (i.e., carriers other than ILECs). But nothing in Section 224 precludes the Commission from concluding that if other attachers (including ILECs) are similarly situated to telecommunications carriers, they should pay the same rates as those carriers,” the FCC said. —Lynn Stanton, [email protected]
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