Transcript The View from the States

Learning Forum: Regulatory
Issues Affecting Contracts and
Operations in the Near Term
Presented to the SEE Joint Use Committee by
Charles A. Zdebski
Troutman Sanders LLP
Washington, DC
202-274-2909
[email protected]
WIRELESS ACCESS ISSUES
• Negotiations with wireless carriers for access to
poles are now more common than with cable
companies. Some frequently arising issues:
–
–
–
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Annual rental rate (no FCC formula)
Location of antenna on the pole (top of pole)
Change-out to taller pole / pole-top extenders
Transmission structures (definition of transmission vs
distribution pole)
– Ingress and egress to pole site
– Prior review/approval by utility of antenna(s)
WIRELESS ACCESS ISSUES
(Continued)
– Location of power supplies on or near pole (additional
rent; pad site)
– Reclamation of pole space by utility
– Rf exposure from radiating antenna
– Rf cut-off (switch on pole or call to NOC?)
– Provisions to limit competing sources of rf
interference
– Considerations relating to state utility commissions’
concerns for infrastructure reliability and continuation
of service during and after storms or other events
(e.g., Florida pole hardening proceedings)
TREND: STILL MORE WIRELESS!
• Licenses awarded by FCC in Auction 66, “Advanced
Wireless Services,” concluded September 18, 2006
• Negotiations to relocate incumbent microwave operators
(probably your utility) are now underway; pole access
negotiations will follow
• FCC opened WT Docket 07-195 on September 7, 2007,
to consider service rules for yet another Advanced
Wireless Services band (2155 -2175 MHz)
• Auction 73, (700 MHz band, a/k/a the “beachfront
property” for wireless service) begins January 24, 2008
ARE YOU PREPARED FOR RULE
CHANGES?
• Strong rumor that FCC may initiate rule
making in response to Fibertech (codify
pole access practices) and USTA
(regulated access by ILECs) petitions and
seek to unify the cable rate formula and
telecom rate formula
• Are you prepared to file comments?
• Will your contract with cable providers
allow you to implement a higher rate?
Other Important Current Issues
• Rate for VoIP Attachments
• Counting Telecom Attachments
• Collecting Past Due Amounts
Rate for VoIP Attachments
• FCC’s IP-Enabled Proceeding
• Several cases
Counting Telecom Attachments
• Often raised by cable companies
• Several pending cases
Collecting Past Due Amounts
• A longstanding problem
• The only solution is good contracts and
strong state law cases
CURRENT CASES TO WATCH
• Charter v. Ameren (collecting telecom rate for
telephone service by cable company)
• Georgia Power v. Comcast (counting average
number of attaching entities for purposes of the
telecom rate)
• TECO v. Brighthouse (telecom transport by
affiliate not a party to the access agreement)
• ACTA v. Entergy (permissible utility practices)
Charter v. Ameren
• VoIP
• Counting Telecom Attachments
• Trial in December
Georgia Power v. Comcast
• Two cases pending
• Average number of attachments
• Counting telecom attachments
• Typical dance moves
TECO v. Brighthouse
• Similar to Ameren v. Charter
• Transport
• State case stayed
ACTA v. Entergy -- Arkansas
• Major Proceeding at FCC, Arkansas Cable
Television Association v. Entergy
Arkansas, Inc., EB Docket No. 06-53
• Arkansas Act 740, March 30, 2007, “To
vest the Arkansas Public Service
Commission with Jurisdiction over Pole
Attachment Agreements and Disputes…”
– Requires PSC to adopt rules within 1 year
Arkansas (continued)
– Parties Entitled to Nondiscriminatory Access
Include Electric Utilities (compare, US
Telecom petition at FCC) and Internet Access
Service Providers
– Does not Cover Rights-of-way
– PSC Required to Consider Reliability of Public
Utility Services
– PSC Authority to Resolve Complaints
Florida
• In response to two straight devastating hurricane seasons and a
long-range forecast for a prolonged period of worse than average
hurricanes, the Florida PSC adopted rules to require utilities to
“Storm Harden” their system (Docket No. 060173-EU).
• Rule 25-6.0342 Electric Infrastructure Storm Hardening: Each utility
must file a comprehensive storm hardening plan for review and
approval by the FPSC. The initial plans are due within three months
of the effective date of the rule (May 7, 2007), then every three years
thereafter.
– Each storm hardening plan must identify the extent to which collocation
facilities are affected.
– Attachment Standards and Procedures governing the safety, reliability,
pole loading capacity, and engineering standards and procedures for
third-party attachments must be included.
– Each plan must contain an estimate of the costs and benefits to the
utility such as reductions in storm restoration costs and outages.
– Each plan must provide an estimate of the costs and benefits to thirdparty attachers, with such information to be provided to the utility by the
affected third-party attachers.
Florida (cont’d)
• Audits of Joint-Use Facilities (Docket No. 060198-EI)
– In April 2006, the Florida PSC found that Florida’s utilities had
not provided adequate assurance that their practices and
procedures governing joint-use facilities serve to mitigate storm
damages and customer outages.
– Florida PSC required each utility to establish a plan, an
implementation timeline, and a calculation of rate impacts to
audit joint-use agreements that include pole strength
assessments.
– Each utility’s plan includes the stress impacts of all pole
attachments as an integral part of its eight-year pole inspection
program.
– The Commission required that each utility reevaluate its plan
annually to assess the need for any adjustment.
– Hearings held October 3rd