The Most Shared Infrastructure Element
By Gary Miller, Wind Lake Solutions
Utility (including telephone) poles are a ubiquitous component of our contemporary landscape. Perhaps as many as 200,000,000 of these underappreciated structures span the United States, supporting the spider web of power and communications networks that make modern life possible.
One characteristic that separates poles from most other utility infrastructure elements is the degree to which their owners share them with other companies. This, more complicated than you might imagine environment of sharing, is commonly referred to as “joint use.”
Pole Attachments: Increasingly Complex
Joint use of poles by “foreign” attachers has been going on for a very long time. This activity, was much less complicated however, when every home and business in America was served by one power company and one telephone company, and television signals were sent through the air. Since that time, changes including the extensive deployment of cable television systems, the development of a competitive telecommunications market, the widespread provision of broadband communications services, and today the move toward citywide wireless networks have all resulted in increased demand for pole space. Each of these technical and commercial developments has had implications on pole attachments, in many cases prompting legislation, regulation, and adjudication.
Legislation, Regulation and Authority
Under Section 224 of the Communications Act, the FCC has had authority to regulate the rates that investor-owned utilities could charge cable television operators for pole attachments since 1978. The FCC’s jurisdiction was broadly expanded by the Telecommunications Act of 1996, under which investor-owned utilities were compelled to provide reasonable and nondiscriminatory pole access to providers of telecommunications and cable television services. While the Telecommunications Act reaffirmed the exemption of publicly owned utilities from federal pole attachment regulation, Section 253 of the Telecommunications Act prohibits state and local governments from erecting barriers to communications service entry and allows local governments to manage their rights-of-way only on a competitively neutral and nondiscriminatory basis.
These foundational legislative acts form the basis for many subsequent rulings, regulations, and agreements with more specific applicability including regulation in 19 states which have elected to “reverse preempt” FCC rules, asserting their own authority to regulate pole attachments and adopting their own pole attachment regulations.
Opportunities, Issues and Challenges
While legislation and regulation establish broadly applicable boundaries and context for pole attachment administration practices, there are a number of relationship types which further define pole owner and attacher interaction. In a few locales, “joint ownership” practices, where percentages or portions of individual poles are owned by power and communications companies, are used. In many more areas, “ownership parity” agreements define the overall percentage of poles assumed to be owned by a power company and an ILEC (incumbent local exchange carrier). Cable television service providers, CLECS (competitive local exchange carriers), and other communications service providers don’t own substantial numbers of poles and therefore most commonly interact with pole owners in the role of attacher or tenant.
In every case, the specific terms applicable to pole attachment relationships are governed by agreements. These agreements, executed between individual utility and communications companies, set forth procedures for requesting attachment authorization, requirements for notifications between pole owners and attachers, fees and allowable timeframes for application processing, annual rental fees for each pole attachment, and many other details of owner-attacher interaction.
Subject to applicable agreement terms, the process of requesting authorization to attach facilities to one or more poles begins with an attacher submitting a request to a pole owner. Assuming submittal of a complete and compliant request, pole owners may need to conduct a physical assessment and structural analysis of the relevant pole(s) to determine the availability of space and capacity. In cases where space or capacity is constrained, “make ready” work to rearrange facilities or replace poles may be required. Costs for such work are generally the attacher’s responsibility, requiring the attacher to either authorize the work or revise their request in order to avoid the costs. This incremental, potentially looping, collaborative communication process continues through authorization, construction, and inspection.
While pole owners suffer an administrative burden as a function of their responsibility to provide reasonable and nondiscriminatory access to their poles, costs associated with administration, analysis, construction, and inspection work are generally paid by attachers. Additionally, pole owners receive annual rental fees from attachers. Although rental rates allowed by the FCC are considered less than adequate by most pole owning companies, attachment revenues can be significant for pole owners who negotiate favorable agreement terms and effectively administer their joint use programs.
The presence of foreign attachments on utility poles additionally however requires pole owners to work cooperatively with attachers throughout the lifecycle of joint use poles. Pole removal or replacement, required for reasons potentially including road widening, damage or deterioration, or even as a consequence of a new attachment request necessitates pole owners to work cooperatively with attachers to accomplish the orderly and sequenced removal or transfer of pole attachments and subsequent pole removal. In various locations, difficulty in managing such projects has resulted in regulatory and public initiatives to eliminate “double wood” conditions caused by incomplete pole transfer and removal projects.
Another challenge associated with joint use pole attachments involves attachers’ responsibilities to comply with pole owning company standards and NESC codes as well as the parallel pole owner responsibility to verify and enforce compliance. While most attachment agreements reference these responsibilities, the diligence of construction, inspection, and enforcement activities vary from company to company in this regard.
“We need to work together to adhere to NESC codes and local construction standards,” said Larry Thompson, joint use coordinator for Ohio Edison/Penn Power. “We’re all in the pole and wire business.”
In addition to the possibility that authorized attachments may deviate from applicable standards and codes, the construction of unauthorized “bootleg” attachments also occurs. Such attachments may be especially likely to violate standards and codes and certainly result in lost revenues for pole owners. Attachment agreements generally set forth penalties for unauthorized attachment. Parties who attach to poles without benefit of an applicable agreement may be subject to criminal and/or civil prosecution, but the responsibility to detect and pursue reparation for unauthorized attachments lies with pole owners.
Any deviation from applicable standards and codes, whether associated with authorized or unauthorized attachments may create safety or reliability concerns for utilities. While the revenue derived from pole attachments doesn’t always merit the attention of pole owner companies, safety and reliability concerns associated with non-compliant attachments do. Further, civil liability may arise from infrastructure failures or other incidents brought about in part by attacher non-compliance or inadequate administration or enforcement by pole owners. Despite this enumeration of worst-case possibilities, many utilities effectively administer their joint use pole attachment programs and most attachers endeavor to responsibly comply with standards, codes, and agreement terms.
Each of the challenges discussed above also contribute to a requirement for both pole owners and attachers to create, maintain and appropriately retain accurate records associated with pole attachments. Such records may include attachment permits and authorizations, records of inspections, notifications of attachment activities or conditions, and accurately maintained records of pole attachments in graphic or tabular form. This records management requirement not only supports appropriate management and administration of joint use programs, but can also be demanded by regulators or courts.
In a highly visible 2004 ruling, the Utah PSC rejected a pole owner’s attachment audit baseline largely because verifiable audit records were unavailable and complemented that position by placing the burden to prove that attachments were properly authorized on the attacher, faulting both the pole owner and the attacher for poor record keeping. According to attorney Thomas Magee of Keller and Heckman LLP, inadequate pole attachment records are not just a problem in Utah. “The lack of effective recordkeeping is one of the primary obstacles to effective regulatory oversight of pole attachments. FCC and State regulators time and again have rejected otherwise compelling safety and operational concerns because pole owners failed to provide the information required to prove their claims,” he said.
All of the pole attachment issues discussed above exist within evolving technical, commercial and regulatory environments. The definitions of communications and cable television, upon which the most foundational pole attachment legislation and regulation rely, are subject to revision. Telecommunications and cable television companies offer substantially similar broadband connectivity, providing competing voice and internet access services. The potential for power companies or third-parties to enter this market with broadband over power line (BPL) offerings may further confuse the applicability of existing legislation and regulation. Concurrent with this reality, wireless city initiatives are under way in municipalities large and small. These systems depend on the installation of hundreds, thousands or tens of thousands of antennae. Utility poles are favored locations for such “wireless attachments,” creating new administrative and technical challenges, prompting concern over safety issues, and venturing into uncharted territory with regard to the applicability of regulated or market-based attachment fees. In several areas, pole owner’s have suffered negative press associated with their difficulty in handling high volumes of wireless attachment applications or because of drawn-out negotiations that have delayed wireless city deployment.
The common and competing interests of pole owners and attachers are represented by a number of state-wide, regional and national associations. These organizations facilitate communication between their pole owner and/or attacher members and advocate on behalf of their members when seeking legislative or regulatory rulings or reform.
The commercial marketplace also offers a range of products aimed at assisting in the effective management and administration of pole attachment programs. Software solutions available today include mobile and office-based geographic information system extensions and similar applications designed to facilitate the capture, storage, and retrieval of attachment information, as well as web-based applications designed to facilitate effective communication between pole owners and attachers. Even a few years ago, most software applications aimed at this market fell short of meeting utility pole attachment management needs. Today however, products that provide improved project lifecycle management facilitate utilities’ ability to stay on top of attachment management requirements and demonstrate such to partners and regulatory bodies.
Effective Communication is Imperative
From a conservation of resources perspective, joint use of utility poles is a noble undertaking. The federal government, state regulators, and courts have mandated reasonable and nondiscriminatory access to poles for the purposes of providing a fair and open market that promotes technology advancement and competition. This is also a laudable goal. For pole owners and attachers alike, pole attachment administration offers many challenges. Like most human endeavors, effective communication offers the greatest opportunity to ensure successful joint use pole attachment programs. Effective programs require efficient and appropriately recorded communication between pole owners and attachers complemented by appropriate communication within pole owner and attacher organizations and between these companies and the third-party contractors who are often significantly involved in pole attachment activities. As utility joint use programs evolve, many of the details that define joint use administration today may change, but the need for effective communication will persist.
Gary Miller is vice president, solutions development for Wind Lake Solutions, serving in the role of consultant, business analyst, and solution architect while supporting utility and telecommunication companies in the areas of joint use and geographic information systems.