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.
2nd UPDATE: The utilities do seem prepared to seek certiorari. They sought an extension to file a cert petition which was granted by Justice Gorsuch. Their deadline to file is now November 28, 2017.
3rd UPDATE: The group of electric utilities that had unsuccessfully challenged the FCC’s rule closing the “telecom formula loophole” in the Eighth Circuit filed their Petition for Certiorari in the U.S. Supreme Court November 28. Interestingly, there was only a single footnote reference to the DC Circuit decision that had upheld the FCC’s 2011 Order that began the process of aligning the telecom and cable rate formulas. The Utilities had sought certiorari in that case too which had been denied. That denial was omitted from their citation to the DC Circuit decision.