On Monday, July 31, 2017, the U.S. Court of Appeals for the Eighth Circuit, in a unanimous opinion, affirmed the FCC’s November 2015 Order on Reconsideration closing the “telecom formula loophole” to ensure that pole attachment rates for cable and telecom attachers are equivalent. In the FCC’s 2011 Order that was upheld by the D.C. Circuit, the FCC sought to align the telecom pole rate formula with the cable formula. In the 2011 Order the FCC added cost allocators of 66 percent in urban areas and 44 percent in non-urban areas, thereby matching the FCC’s presumption of 5 attachers in urban areas and 3 in non-urban areas and bringing telecom rates down to cable rates.
Read the full analysis here.
UPDATE: No rehearing petition (panel or en banc) was filed by the deadline of September 14. The mandate should issue by September 21. We can assume the loophole has closed, unless, of course, the utilities seek certiorari.