Straight Talk on Tough Infrastructure Access Issues

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Straight Talk on Tough Infrastructure Access
Issues

• Charles A. Zdebski Eric B. Langley
• Troutman Sanders LLP Balch Bingham LLP
• Washington, DC Birmingham, AL
• [phone] [phone]
• June 26, 2008

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The Hot Issues

• Requests for Wireless Attachments, especially
  Distributed Antenna Systems (DAS)
• ILEC Relationships
• Getting the Telecom Rental Rate for Cable Phone
  Service
• Waiting for the FCC to Issue Its New Pole
  Attachment Rules

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Background

• Pole Attachment Act
• 1978 Act
• 1996 Act
• 2007 FCC NPRM
• Who/What It Covers?
• State Certification

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Wireless Attachments

• Under 47 U.S.C. 224, access to poles must be
  granted to cable television systems and
  telecommunications carriers.
• The U.S. Supreme Court has held that
  telecommunications carriers include wireless
  carriers as well as wireline carriers.

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Wireless Attachments

• There is no rental rate formula for wireless
  attachments stated in the FCCs rules.
• Most utilities charge some multiple of the
  telecom rate.

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Typical Wireless Issues

• Whether to allow them at all (despite federal
  law).
• Whether to allow them at the top of the pole or
  confine them to the communications space.
• Whether to install taller poles or add pole-top
  extensions.

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Wireless Attachments

• Clearly, wireless attachments requested by
  established cellular carriers must be allowed.
• But what about Distributed Antenna Systems DASs?

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What is DAS?

• A distributed antenna system (DAS) is a network
  of spatially separated antenna nodes connected to
  a common source via a transport medium that
  provides wireless service within a geographic
  area or structure.
• DAS nodes are remote radiating points
  interconnected to a base unit (a hub).
  Typically, a node comprises an antenna and a
  small radio head mounted on existing distributed
  structures, such as utility poles.
• DAS is a specialized solution where structural,
  spatial or architectural concerns make it
  impractical or infeasible to deploy traditional
  cell sites.

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A DAS Node
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ButIs DAS Entitled to Access at
Regulated Rental Rate?

• Not unless the DAS provider is a (certificated)
  telecommunications carrier.
• Many DAS providers are tower companies, who are
  seeking to offer a coverage solution to their
  telecom customers.

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The Open Question

• Whether DAS providers gain access rights by
  virtue of their customers status as
  telecommunications carriers.
• May be answered in pending NPRM, discussed below.

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ILEC Relationships

• History Purpose
• Infrastructure Cost Sharing
• Savings for both parties
• Duty to serve certificated areas
• Joint Use Agreements
• Based on PARITY of ownership
• Adjustment/rental rates
• Freely negotiated
• Joint Ownership

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ILEC Relationships

• ILECs are now in direct competition with other
  telephone internet providers
• Economics
• CATV 7
• CLEC 15
• ILEC 35
• ILECs setting fewer poles
• Ownership imbalance
• Paying more in adjustment rentals
• Consequences ? ILECs re-identifying themselves as
  attachers rather than infrastructure owners

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ILEC Relationships

• ILECs want
• Lower rental/adjustment rates
• More favorable parity levels
• Buy back poles at average embedded cost
• USTA Rulemaking petition (Fall 2005)
• Message we are entitled to rate protections in
  Pole Attachment Act
• One of two petitions forming basis of pending
  rulemaking docket (WC Docket No. 07-245)
• PROGNOSTICATION

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The Next Generation of
Disputes with Cable

• As cable companies move into wireless
  communications, look for them to take the
  position that their wireless attachments are
  entitled to the cable rate (if that rate still
  exists).
• Also look for a proliferation of unauthorized
  wireless attachments by cable companies as they
  acquire spectrum (e.g., SpectrumCo, a consortium
  of Comcast, Time Warner and other cable
  companies) or implement Wi-Fi or WiMax
  technologies and rush to compete with wireless
  services offered by telephone competitiors.

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Getting the Telecom Rental Rate for

Cable Phone Attachments

• 47 U.S.C.224(e)(1) The Commission
  shallprescribe charges for pole attachments used
  by telecommunications carriers to provide
  telecommunications services
• 47 C.F.R. 1.1409(e)(2) the telecom formula
  shall apply to all attachments to poles by
  anycable operator providing telecommunications
  services
• 47 C.F.R. 1.1403(e) Cable operators must
  notify pole owners upon offering
  telecommunications services.

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Cases Seeking the Telecom Rate for

Cable Phone Attachments

• Comcast v. Georgia Power
• Tampa Electric v. Brighthouse
• Ameren v. Charter

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NPRM Background

• Only FCC pole attachment rulemaking in last
  decade
• Released November 2007
• Published February 2008
• Based on two petitions
• USTA (regulated rates for ILECs)
• Fibertech (new access rules)
• Only one real rule in NPRM (tentative) all
  broadband attachments at same rate (between Cable
  and Telecom Rate)

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NPRM At Stake?

• ILEC Relationships
• Can the FCC regulate?
• Should the FCC regulate?
• Access Rules
• Regulation by rule vs. exception
• nationalization of engineering standards
• Unauthorized attachments
• Unification of broadband rate
• Where will it land?
• Legal and practical issues
• Wireless access rates

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NPRM Status

• Comments
• Initial ? March 7, 2008
• Reply ? April 22, 2008
• Now in the ex parte phase
• Electric utilities well represented (filed
  comments ex parte)
• Expectations what when?
• Consequences will more states seek certification
  of pole attachment regulation?

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QUESTIONS