Class 7 Network Industries, Spring, 2014 The Pole Attachments Act 11/17/2018 Class 7 Network Industries, Spring, 2014 The Pole Attachments Act Randal C. Picker James Parker Hall Distinguished Service Professor of Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2000-14 Randal C. Picker. All Rights Reserved.

1978 Pole Attachments Act History 11/17/2018 1978 Pole Attachments Act History Facts from Legislative History 7800 cable pole attachment agreements in place 53% of poles controlled by power companies 85% of these already had telephone wires attached to them Most of the rest controlled by telephone companies November 17, 2018

1978 Act Legislative History: FCC Authority November 17, 2018

1978 Act Legislative History: FCC Authority November 17, 2018

1978 Act Legislative History 11/17/2018 November 17, 2018 1978 Act Legislative History

1978 Act Legislative History November 17, 2018 1978 Act Legislative History

1978 Act Legislative History November 17, 2018 1978 Act Legislative History

November 17, 2018 1978 Act: Key Definitions

1978 Act: FCC Just and Reasonable Rate Regulation (Subject to State Displacement) November 17, 2018

November 17, 2018 1978 Act: State Regulation

1978 Act: FCC Just and Reasonable Formula November 17, 2018

1978 Act: Sunset of formula in (d) November 17, 2018 1978 Act: Sunset of formula in (d)

1978 Pole Attachments Act History 11/17/2018 1978 Pole Attachments Act History Rate-Setting without Access Rights Desire to control monopoly power No access required, but if access to poles given and the states have not regulated the price of access, federal rates apply November 17, 2018

11/17/2018 1996 Amendments Core Create parallel rights for telecommunications service providers Rewrite of 224(a)(1) and 224(a)(4) New 224(f) Revised rate formulas in 224(d); add new 224(e) November 17, 2018

1996 Amendments (47 USC 224): Definitions November 17, 2018 1996 Amendments (47 USC 224): Definitions

1996 Amendments: FCC General Rate-setting Authority November 17, 2018

1996 Amendments: State Authority November 17, 2018 1996 Amendments: State Authority

1996 Amendments: FCC Rate Formula November 17, 2018 1996 Amendments: FCC Rate Formula

What is a “telecommunications service”? 1996 Amendments: What services are covered by the FCC formula? November 17, 2018

1996 Amendments: Telecommunications Services rates November 17, 2018

1996 Amendments: Nondiscriminatory Access Right November 17, 2018

Rights Structure Absolute right to access poles? Answer: No, but … 11/17/2018 Rights Structure Absolute right to access poles? Answer: No, but … Sec. 224(f)(1) obligation applies only to a “utility” Under Sec. 224(a)(1), two requirements for utility: LEC or public utility, and poles etc. used for “any wire communications” November 17, 2018

11/17/2018 Rights Structure General public utility will not be using poles for communications unless it has entered that business or given access to third parties Once it does so, this triggers the nondiscrimination obligation of 224(f)(1) But, with 47% controlled by telephone companies and at least 85% of the remaining 53% already with wire communications, close to full access November 17, 2018

FCC Pole Attachments Order (1998) November 17, 2018 FCC Pole Attachments Order (1998)

FCC Pole Attachments Order (1998): Commingled Cable Service gets benefit of 224(b) November 17, 2018

FCC Pole Attachments Order (1998): What rate for commingled under 224(b)? The 224(d)(3) rate November 17, 2018

FCC Pole Attachments Order (1998): Internet service is not telecommunications service November 17, 2018

Pricing and Internet Service Attachments 11/17/2018 Pricing and Internet Service Attachments What kind of service is cable modem service? Why do we care? Under 224(a)(4), pole attachments rules tied to cable TV systems or provider of telco service Pricing rules tied to cable TV system “solely” providing cable service (224(d)(3)) or telcom carrier providing telcom service (224(e)(1)) or general rule of 224(b) November 17, 2018

Pricing and Internet Service Attachments 11/17/2018 Pricing and Internet Service Attachments What kind of service is cable modem service? Why do we care? If cable system hooks up wire doing something other than cable or telcom service, do they have access right and what rate do they pay? November 17, 2018

According to the FCC Cable internet 11/17/2018 According to the FCC Cable internet Isn’t a telcom service, so 224(e) doesn’t apply Chooses not to decide whether it is a cable service but applies the 224(d) pricing scheme anyhow November 17, 2018

Wireless Carrier Attachments 11/17/2018 Wireless Carrier Attachments Lower Court Analysis 224(a)(1) and (a)(4) together are limited to attaching wires to poles “Read in combination, these two provisions give the FCC authority to regulate attachments to poles used, at least in part, for wire communications, and by negative implication does not give the FCC authority over attachments to poles for wireless communications.” November 17, 2018

Wireless Carrier Attachments 11/17/2018 Wireless Carrier Attachments Why is this wrong? Should the theory of the PAA matter? Focus on access to bottleneck facilities? Poles aren’t that for wireless communications? November 17, 2018