FCC’s Rapid Broadband Assessment Team Issues Landmark Pole Attachment Ruling Benefiting Broadband Deployment

In a significant win for national broadband deployment efforts, last week the FCC’s new Rapid Broadband Assessment Team (“RBAT”) issued a first-of-its-kind decision in Comcast Cable Communications, LLC v. Appalachian Power Company, addressing pole-replacement cost responsibilities when preexisting safety or engineering violations are present.  The ruling marks the first pole attachment complaint resolved by the RBAT under the FCC’s Accelerated Docket and carries far-reaching implications for BEAD-funded and other broadband infrastructure projects nationwide.

At issue was an Appalachian Power Company (“APCo”) policy requiring new utility pole attachers to pay the entire cost of replacing poles that have preexisting code violations that require pole replacement to remedy – even when those violations were caused by third parties long before any new attachment request.  Under APCo’s policy, the new attacher was required to pay 100% of the pole replacement cost upfront, and the new attacher might, at most, be reimbursed 50% of the cost in the future depending on the choice of the preexisting violator. 

The FCC squarely rejected APCo’s approach.  The Commission held that a utility may not require a new attacher to fund the full cost of replacing a pole with preexisting safety or engineering deficiencies.  The FCC also rejected APCo’s potential 50% reimbursement allocation.  Instead, consistent with the FCC’s long-standing cost‑causation principles, a new attacher may be responsible only for the incremental costs of a taller or stronger pole to the extent necessary to accommodate its own new attachment.  Otherwise, utilities must recover the cost of the pole replacement necessary to remedy the preexisting violation from the party or parties responsible for the preexisting violations and cannot seek to recover those costs from new attachers who did not cause the violations.  Practically, because the FCC’s holding limits new attacher liability to the incremental costs caused by the new attacher, which may be only the cost of a few feet of bare pole, with no installation costs, the new attacher would owe substantially less than the amounts APCo sought to impose and recover under its policy.  

Beyond resolving the specific dispute, the FCC’s Order provides nationally significant precedent and clarification.  By clarifying the allocation of pole replacement costs and enforcing the FCC’s cost causation principles, the FCC removed a major barrier to broadband deployment. The FCC’s accelerated resolution of the dispute was also critical, particularly in areas that rely on federal or state funding, such as BEAD, which impose build-out deadlines.

Chairman Brendan Carr praised the ruling and the RBAT process, stating:

Too often, disputes between providers and pole owners are a significant obstacle in the way of that deployment.  Today’s action shows that the FCC’s new RBAT and Accelerated Docket procedures are a powerful tool to resolve disputes quickly.  This critical new FCC process is now officially standing by to resolve these matters so we can get busy connecting American homes and businesses. 

This decision will shape pole-attachment policy nationwide and materially advance broadband expansion.

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