Richard J. Busch Busch Law Firm PLLC Kirkland, WA 425-458-3940 [email protected]

President, Northwest Wireless Association WEI 2009 Joint Use Conference Boise, Idaho September 28, 2009

       Landline telephone -1878 Electric utility - 1882 Cable TV - 1948 Cellular/PCS infrastructure - 1983 Electric and landline telephone first in ROW Latecomers face resistance from incumbents What will the next 100 years bring?

     If we delay through negotiations, public safety is jeopardized Federal policy – deploy wireless and broadband across America We all have right to use ROW to serve customers Install new infrastructure with existing infrastructure We can “Do What’s Right”, or we can “Play by the Rules”

        Wireless carriers don’t have the right to attach to utility poles; they aren’t regulated utilities The Telecom Act only applies to the comm space Wireless carriers must pay whatever I say up front Wireless carriers can’t access transmission towers We need to resolve safety issues before we can proceed We won’t handle a request for 4 sites; too small Utilities may take 2 years to complete pole surveys or installations Five-day installation and maintenance window every year

 ◦ ◦ ◦ ◦ ◦ ◦ ◦ What is “Right”?

Installation on transmission and distribution poles Pole replacements and extensions when appropriate Reasonable rent – we’re paying rent to 3 landlords Reasonable pole survey and installation intervals Competitive bids from list of approved vendors Detailed receipts for make ready work Reasonable terms: long term agreements; termination rights; reciprocal default, remedy and indemnity; good faith cooperation; timelines

 ◦ ◦ ◦ What are the “Rules”?

Telecom Act applies to investor owned utilities Federal law applies, unless state pre-empts FCC 19 states claim to have pre-empted FCC:

 ◦ ◦ ◦ ◦ ◦ What are the “Rules”? Federal law: Wireless carriers are telecommunications service providers under the Telecom Act Wireless carriers may attach to poles at regulated rates Doesn’t matter that wireless is not regulated by states; still have right to attach at regulated rate Distribution poles: Yes. Interstate transmission towers: No. Intrastate transmission towers: Yes.

Must handle all requests, even small quantity

 ◦ ◦ ◦ ◦ ◦ ◦ What are the “Rules”? Federal law: Telecom rate for attachments May not demand payment up front (Bureau chief decision) Pole surveys and wireless installations must be performed in a reasonable time Provide detailed receipts for invoices Pole replacements: Eleventh Circuit: No. FCC to consider “capacity” issue.

Access to rights of way controlled by utility?

1. Recognize our social responsibilities ◦ ◦ ◦ ◦ Right of way is owned by the public Install new infrastructure with existing Wireless carriers need access above conductor Right of way doesn’t stop at the top of the pole 2. If we don’t cooperate for the public good, we deserve the additional regulation we will get 3. Fighting before regulators doesn’t produce creative results 4. Large work groups aren’t efficient

 5. Proposal for Progress:   Gather a small group of leading thinkers  2-3 utilities and 2-3 carriers Identify mutual goals    Tackle top 5 – 10 goals Participants implement the solutions Present results to UTC as working document