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Pole Attachment Update

Both federal and state laws apply. Two relevant federal statutes47 U.S.C

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Pole Attachment Update

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    1. Pole Attachment Update TPPA Legal Seminar San Antonio November 2-3, 2006

    2. Both federal and state laws apply Two relevant federal statutes 47 U.S.C § 224 (CFR §1.1401 et seq.) Contains grant of authority of FCC to regulate pole attachment “rates, terms and conditions” so that they are “just and reasonable” Separate cable and telecom rates Explicitly does not apply to municipal utilities 47 U.S.C. § 253 Prohibits municipalities from erecting so-called “barriers to entry”

    3. PURA PURA §54.204 Prohibits discrimination between telecom providers as to attachment rates and terms Now mandates federal telecom rate under §224(e) as the maximum pole charge Requires neutral treatment of services (e.g., telecom, cable, internet) Required uniform rate by Sept. 1, 2006

    4. Local Gov’t Code Chapter 283 Similar to federal 47 U.S.C. § 253 Abolished telecom franchises Requires ROW management to be competitively neutral and non-discriminatory Limits municipal authority over ROW to permitting and general police powers Does not affect pole attachment charges Allows telecom providers the right to place own poles and facilities in municipal ROW

    5. Overlapping jurisdictions Both 47 U.S.C. 253 and Local Gov’t Code Chapter 283 provide jurisdiction to enforce FCC may preempt municipal requirement that creates a barrier to entry or that is not competitively neutral PUCT may ensure municipal requirements are competitively neutral, non-discriminatory, and reasonable

    6. PUCT Jurisdiction PUCT has jurisdiction to: Enforce Chapter 283 Determine whether telecom pole attachment rates and terms are non-discriminatory Determine whether pole attachment rates are below FCC telecom maximum

    7. Unauthorized Attachments FCC has asserted authority over unauthorized attachment penalties Public Service Co. of Colorado v. FCC, 328 F.3d 675 (D.C. Cir. 2003) FCC ordered that a just and reasonable penalty was five times the annual attachment rate Rejected utility position based upon avoided costs of attacher plus added amounts for safety risk and administrative costs Dismissed safety/deterrence argument on grounds that attacher’s own liability exposure would provide adequate safety assurances Blamed utility for failure to conduct regular pole audits

    8. Cable Television System of Georgia v. Georgia Power Co. (FCC P.A. 01-002 2003) Also focused on utility’s record of regular pole inspections Reasonable back-rent for provable period is permissible 10% administrative fee may be allowed for “egregious” conduct by attacher

    9. Criminal Penalties Preempted? Austin City Code provides that “knowingly” placing an unauthorized attachment is a Class C misdemeanor with a maximum fine of $100 per day FCC didn’t specifically address criminal laws or mens rea component Still, FCC held that deterrence was adequately achieved by a 5x penalty

    10. Brand X Decision National Cable and Telecommunications Ass’n v. Brand X Internet Service, et al, 545 U.S. 967 (2005) 2002 Gulf Power decision (534 U.S. 327) held that FCC could apply cable-only rate to cable companies providing broadband internet Brand X held that broadband internet service is an information service, not a telecommunication service Did not address VOIP FCC entitled to Chevron deference

    12. PURA §54.204 was amended in 2005 (c) A municipality or a municipally owned utility may not charge any entity, regardless of the nature of the services provided by that entity, a pole attachment rate or underground conduit rate that exceeds the fee the municipality or municipally owned utility would be permitted to charge under rules adopted by the Federal Communications Commission under 47 U.S.C. Section 224(e) if the municipality's or municipally owned utility's rates were regulated under federal law and the rules of the Federal Communications Commission.

    13. Uniform rate required In addition, not later than September 1, 2006, a municipality or municipally owned utility shall charge a single, uniform pole attachment or underground conduit rate to all entities that are not affiliated with the municipality or municipally owned utility regardless of the services carried over the networks attached to the poles or underground conduit.

    14. How much of §224 applies? PURA §54.204(c) uses federal telecom rate as a cap Does not import FCC deadlines, notice requirements, and procedures Presumptions? Average no. of attaching entities (not attachments) Pole height, usable and unusable space No cable rate

    15. 47 C.F.R. 1.1401 et seq.

    16. TPPA Model Ordinance

    17. AN ORDINANCE ADOPTING A UNIFORM POLE ATTACHMENT RATE Whereas, Senate Bill 5, enacted in the Second Called Session of the 79th Texas Legislature, has amended Section 54.204(c) of the Texas Utility Code to require municipalities to charge communications providers a single, uniform rate for pole attachments regardless of the nature of the services provided; and Whereas, the City Council desires to implement the requirements of SB 5:

    18. BE IT ENACTED: Part I. Section _____ of the City Code is amended to read as follows:

    19. (1) Definitions. a. “Communications provider” includes a cable provider, certificated telecommunications provider, and any other entity providing voice, video, cable, data, internet, or information transmittal services to the general public. The term does not include the City or a governmental entity providing governmental services.

    20. b. “Conduit” means a structure containing one or more ducts. c. “Duct” means a single enclosed raceway for a conductor, cable, or wire.

    21. d. “Pole attachment” means any attachment by a communications provider to a utility pole, duct, or conduit owned by the City. e. “Telecommunications carrier” shall have the meaning assigned to such term by Title 47 U.S.C. § 153.

    22. (2) On or before September 1, 2006 the City Manager/Utility Director shall determine a single non-discriminatory, competitively neutral pole attachment rate to be charged for each pole attachment, regardless of the nature of the service provided. Such pole attachment rate shall not exceed the maximum rate the municipality would be permitted to charge a telecommunications carrier under the Federal Communications Commission’s rules implementing subsection (e) of 47 U.S.C. §244 if the municipality’s pole attachment rates were regulated by the FCC.

    23. (2) Prior to the execution of any new pole attachment agreement, or prior to the modification of the attachment rate contained in any existing pole attachment agreement, the City Manager/Utility Director shall ….

    24. (3) If a communications provider is a party to an existing pole attachment contract with the City, the pole attachment rate determined under Section (2) shall be applied to such communications carrier’s pole attachments in a manner consistent with the terms and conditions of the existing contract.

    25. (4) The pole attachment rate shall be in addition to any other fees, charges, or costs required to be paid by or assessed against a communications carrier pursuant to its pole attachment contract or any other Code section or law.

    26. Future Developments? Federal Franchise Reform Act of 2006 (SB 2989) – in committee Contains language similar to PURA §54.204(a) prohibiting discrimination by municipalities with respect to pole attachment terms and allowing only police power based regulation of ROW Leaves enforcement to state PUCs

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