Court Backs Bulk of FCC Pole Policies

A federal appeals court Thursday upheld several federal regulations designed
to assist cable operators in attaching equipment to poles controlled by electric

The decision was handed down by a panel of the U.S. Court of Appeals for the
11th Circuit -- the same Atlanta-based court that ruled that the
Federal Communications Commission could not regulate cable pole attachments when
the operator transmits Internet data. In January, the Supreme Court reversed
that decision.

In Thursday's ruling, the 11th Circuit panel upheld a Federal
Communications Commission regulation that requires pole owners to have bona fide
business-development plans before reserving space on poles for itself for future

The court also backed the FCC in ruling that third parties may use that
reserved space until pole owners are ready to execute their business plans.

And the court held that cable was entitled to access to all 'poles, ducts,
conduits and rights of way' under a utility's control, and not just those
facilities actually in use for the provision of wire communications.

The commission was upheld in finding that utilities were not permitted to
exclude trained cable employees from working on their poles under
work-proficiency standards set by the pole owners.

An FCC rule requiring pole owners to provide cable operators with 60 days'
notice when they plan to modify poles was also affirmed by the court. The rule
also requires pole owners to share some of the costs to upgrade poles and to
shoulder all of the costs when pole modifications are mandated by government,
such as to accommodate a road widening.

The court, however, reversed two FCC policies. It said the agency was wrong
to conclude that cable's attachment rights extended to interstate
'electric-transmission towers and facilities.' Cable's rights cover local
'poles, ducts, conduits or rights of way' used by the utility for wire
communication, the court ruled.

The FCC was also reversed in finding that if a pole is too crowded to
accommodate a legal attachment, the pole owner was required to expand the pole's

Numerous power companies challenged the FCC's rules. The National Cable &
Telecommunications Association, AT&T Corp. and the California Cable
Television Association supported the commission as intervenors.

'We're pleased that the court of appeals broadly upheld the FCC in this
case,' NCTA senior vice president of law and regulatory policy Daniel Brenner
said. 'The court rejected the utilities' numerous schemes to obstruct cable
operators' access to utility poles. This decision bodes well for efforts by
cable operators to bring consumers new products and services.'