Court of Appeals Affirms FCC’s 2011 Pole Attachment Order

Petitioners appealed (i) the reformulation of the rate that pole owners can charge telecommunications carriers seeking to make pole attachments; (ii) the finding that incumbent local exchange carriers (ILECs) may share some of the Section 224 pole-attachment benefits shared by other telecommunications carriers; and (iii) the FCC’s decision to move back the date by which it measures damages for parties filing successful complaints against utilities.

With respect to the FCC’s decision to adopt pole attachment rates for telecommunications services that will in effect be substantially equivalent to the rates previously adopted for cable, the court credited the FCC’s rationale to “eliminate distortions in end-user choices between technologies, and lead to [telecom] provider behavior being driven more by economic costs than arbitrary prices differentials.” As for the ILEC issue, the court ruled that the FCC was merely substituting one reasonable interpretation of Section 224 for another as part of its decision to allow ILECs to be a potential beneficiary of certain portions the statute. With respect to the third issue under review, the court ruled that the petitioners’ “arguments have no serious statutory basis” as to why the FCC could not change the damage period to the applicable statute of limitations period rather than the previous metric of measuring damages from when the initial complaint was lodged.

For more information, please contact Alan Fishel or any other contacts in the Communications, Technology & Mobile group.