In last week’s Order on Reconsideration, the FCC definitively closed the “telecom formula loophole” thereby ensuring that pole attachment rates for telecommunications attachers (including providers of broadband Internet access service) approximate the rates for cable attachers, as intended by the Commission’s 2011 Order amending its pole attachment rules. In the Reconsideration Order, the FCC further revised the telecom formula to equalize it with the cable formula in most cases in response to a petition for reconsideration filed jointly by NCTA, Comptel (now INCOMPAS) and tw telecom (now Level 3 Communications) (see our advisories dated April 8, 2011, Feb. 26, 2013 and May 6, 2015). The FCC explained that reducing the telecom rate to the cable rate level furthers numerous federal policy goals including encouraging broadband investment, particularly in rural areas. By closing the loophole in yesterday’s Order, the FCC expressly rejected utility arguments that the rule revision unfairly burdens utility ratepayers, or is inconsistent with the requirements of the federal Pole Attachment Act.
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