The DC Circuit today unanimously upheld the FCC’s 2011 pole attachment order, rejecting a challenge from American Electric Power (Ameren) and other pole owning electric power utilities to three new rules contained in the order. The power companies had challenged (1) the order’s expansion of rights under the Pole Act (Section 224 of the Communications Act) to include incumbent local exchange carriers, (2) a revised telecommunication rate formula designed to bring attachment rental rates for telecommunications carriers in line with the rates produced by the formula applicable to cable operator attachments, and (3) an expanded refund period whereby overcharged attachers now have the right to seek refunds going back beyond the date upon which a formal complaint was filed. The court held that the FCC had more than met the “modest demands” for reasonably explaining the three new rules.
While the decision brings definite benefits to both incumbent and competitive local exchange carriers, it also brings certainty to cable operators who will have comfort that their attachment rental payments will be essentially the same regardless of whether their service offerings cause them to be subject to either the telecommunications or the cable rate formulas.
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